Chattisgarh High Court
Vijay Baghel vs Bhupesh Baghel on 8 May, 2025
1
NAFR
HIGH COURT OF CHHATTISGARH AT BILASPUR
EP No. 3 of 2024
Vijay Baghel S/o Late Nammulal Baghel Aged About 63 Years R/o Qrt. No.
7b, Sadak 38 Sector 5, Police Station Bhilai Nagar, District Durg,
Chhattisgarh.
... Petitioner
versus
1 - Bhupesh Baghel S/o Late Nandkumar Baghel Aged About 61 Years R/o
Mansarowar Awasiya Parisar Bhilai-3, Police Station Old Bhilai, District
Durg, Chhattisgarh.
2 - Deleted (Election Commission Of India) Hon'ble Court Order Dated 16-
04-2024 To 01/05/2024
3 - Deleted (Chhattisgarh Election Commission) Hon'ble Court Order Dated
16/04/2024 And 01/05/2024
4 - Deleted (Collector) Hon'ble Court Order Dated 16/04/2024 And
01/05/2024
5 - Deleted (Returning Officer Cum Sub Divisional Officer (Revenue))
Digitally
Hon'ble Court Order Dated 16/04/2024 And 01/05/2024
signed by
VEDPRAKASH
VEDPRAKASH DEWANGAN
DEWANGAN Date:
2025.05.08
19:42:59
+0530
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6 - P. Vijay Kumar (Ips) Dig And The Then Observer Of Election
Commission Of India For Durg District Through Dgp Phq Telangana
7 - Devansh Singh Rathore The Then Sdop Office At Sdop Office Patan,
District Durg Chhattisgarh.
... Respondents
(Cause title taken from Case Information System)
Order Sheet
08/05/2025 Mr. T.K. Jha, Advocate along with Mr. Tapan Kumar
Chandra, Advocate for the Petitioner.
Mr. S. C. Verma, Senior Advocate alongwith Mr.
Aditya Agrawal and Mr. Abhishek Pandey, Advocates for the
Respondent No.1.
Dr. Sudeep Agrawal, Advocate for the Respondent
No.3.
The arguments on the application filed by the
Respondent No. 1, under Order 7 Rule 11 of Code of Civil
Procedure, 1908 (in short 'CPC') (I.A. No. 7 of 2025) was
heard on 11.04.2025.
On 21.04.2025, the parties have agreed to decide the
issue No. 6 as the same is also with respect to the
maintainability of the present election petition on the ground
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that there are certain mandatory provisions under the
Representation of People Act, 1951 (in short 'R.P. Act'),
which has not been complied with and therefore the election
petition is not maintainable for want of its compliance. The
parties were not willing to add any further arguments on
issue No. 6 as well as the application filed by the respondent
No. 1 under Order 7, Rule 11 of CPC and to decide the issue
No. 6 as preliminary issue along with the application under
Order 7, Rule 11 of CPC.
By this order the said application I.A. No. 7 of 2025
and issue No. 6 both are being decided.
Brief facts of the case are that, elections for the
Chhattisgarh Legislative Assembly were held on 07.11.2023
and 17.11.2023 in two faces. The election for Patan
Constituency No. 62, Patan was scheduled for 17.11.2023.
The following schedule was there for the election for Patan
Constituency No. 62 :-
1. The filing of nomination papers- 30.10.2023
2. Scrutiny of nomination papers- 31.10.2023
3. Withdrawal of nomination papers- 02.11.2023
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4. Voting on- 17.11.2023
5. Counting of votes- 03.12.2023.
Clause 20 of the notification directed that the parties
shall refrain from acting in violation of Section 126 of the
R.P. Act, which mandates a silence period of 48 hours prior
to the scheduled ending of polling. Which reads as under:-
"126. Prohibition of public meetings
during period of forty-eight hours ending
with hour fixed for conclusion of poll.--
(1) No person shall--
(a) convene, hold, attend, join or
address any public meeting or
procession in connection with an
election; or
(b) display to the public any election
matter by means of cinematograph,
television or other similar apparatus;
or
(c) propagate any election matter to
the public by holding, or by
arranging the holding of, any
musical concert or any theatrical
performance or any other
entertainment or amusement with a
view to attracting the members of the
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public thereto,
in any polling area during the period
of forty-eight hours ending with the
fixed for the conclusion of the poll
for any election in the polling area.
(2) Any person who contravenes the
provisions of sub-section (1) shall be
punishable with imprisonment for a
term which may extend to two years,
or with fine, or with both.
(3) In this section, the expression
"election matter" means any matter
intended or calculated to influence
or affect the result of an election."
The petitioner and the respondent No. 1 were main
contesting candidates along with other candidates in the
election and after polling and counting of votes, the
respondent No. 1 was declared as elected candidate as
Member of Legislative Assembly for Chhattisgarh Legislative
Assembly from Patan Constituency No. 62. The petitioner
belongs to Bhartiya Janta Party (in short "BJP") and the
respondent No. 1 belongs to Indian National Congress (in
short "INC"). It is alleged that, since the election of the
Constituency No. 62, Patan was scheduled for 17.11.2023 till
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5:00 PM, the silence period as envisaged under Section 126
of the R.P. Act, commenced from 5:00 PM on 15.11.2023.
During the silence period, the parties were prohibited from
rally/road show, yet the respondent No. 1 organized a
rally/road show during the silence period and slogans were
raised in favour of the respondent No. 1 and the INC to cast
votes in his favour. The said rally/road show was
videographed on a mobile phone and photographed by the
election agent of the petitioner.
One Mr. Sourabh Choubey immediately informed the
police observer (respondent No. 2), but no action was taken.
When he tried to contact the election observer, Mr.
Bhadauria, IAS, his mobile phone was continuously found
switched off. Then he immediately informed the central
observer on his mobile No. 9963446658, informing him
about the rally/road show by the respondent No. 1 in the
silence period and sent the video on his mobile phone. The
central observer immediately directed the Superintendent of
Police, Durg to take necessary action. The petitioner also
sent the e-mail through his own e-mail
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[email protected] to the [email protected]
and [email protected], attaching the video recording of
the rally/road show, but no response was received. After the
election on 17.11.2023, the respondent No. 1 was declared
as an elected candidate from Patan Constituency No. 62 for
the Chhattisgarh Assembly. Therefore, the election petition
has been filed against the respondent No. 1 on various
grounds.
The respondent No. 1, after service of notice upon
him, appeared in the case through his counsel and filed his
written statement to the election petition on 05.03.2024 and
denied the averments of the election petition as well as the
adverse allegations made therein against the respondent No.
1 with respect to corrupt practices. He also submitted in
written statement that the present petition is suffered by
violation of the provisions of Sections 80, 81 and 100 of the
R.P. Act, the relevant documents along with the petition as
per their allegation have not been filed, and no sufficient
material facts either pleaded or produced by the petitioner in
the petition pleadings of the election petition, which are
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vague and do not constitute any triable cause of action to
proceed with the election petition. Even no specific affidavit
is filed in the petition stating the entire details of the
allegation and material facts and therefore, the petition is
liable to be dismissed.
The parties have submitted their proposed issues and
thereafter on 05.08.2024, the 07 issues have been framed
and the election petition was fixed for 29.08.2024 for
submission of the list of witnesses, to whom the parties have
to call their witnesses to give evidence or to produce
documents or to call them through summons for their
attendance in the Court for recording of their evidence.
On 23.10.2024, the election petitioner filed his
affidavit under Order 18 Rule 4 of CPC as the chief
examination of himself and his 03 other witnesses. But, for
one or other reason, the proceeding of the case was
adjourned and ultimately on 18.03.2025, the cross-
examination of the election petitioner- Mr. Vijay Baghel was
started, but the same is also suspended as the question of
admissibility of the article (mobile phone) and copy of e-mail
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in evidence arose. Thereafter, on 24.03.2025, an application
(I.A. No. 7 of 2025) under Order 7 Rule 11 of CPC is filed by
the respondent No. 1 for rejection of the election petition on
certain grounds, which are mentioned hereinbelow.
The election petitioner has filed his reply on
08.04.2025 (reply dated 05.04.2025) to the application filed
by the respondent No. 1 under Order 7 Rule 11 of the CPC.
The parties have been heard on the application of Order 7
Rule 11 of the CPC (I.A. No. 7 of 2025) and on 21.04.2025,
they are also heard on issue No. 6, which relates to the
same issue as raised in the application filed under Order 7
Rule 11 of CPC and the parties have submitted that both
may be decided together as the issues are one and the
same, and they do not want to add any additional
submissions.
The respondent No. 1 has filed the application under
Order 7 Rule 11 of CPC read with Section 86(1) of the R.P.
Act for rejection of the election petition filed by the petitioner
raising the following defects in the petition:-
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"I. That, the present petition is in total
violation of the provisions of the section
80, 81 and 100 of the Representation of
the People Act, 1951.
II. It is humbly and respectfully submitted
that the petitioner has not filed any
documents as required under the
provisions of the Representation of the
People Act. Instead, the petitioner has
merely attached annexures, which is not
the proper procedure for filing an election
petition. The documents must be
submitted in a manner that allows them to
be proved during the course of the trial.
Since no documents have been properly
placed on record, and the contents of the
annexures are not admissible in an
election petition, no triable cause of
action arises. Therefore, the election
petition is liable to be dismissed at the
threshold.
III. It is humbly and respectfully submitted
that, regarding the allegation of corrupt
practices, no substantial material,
material facts, or specific particulars have
been provided. The petition lacks
necessary details and supporting
evidence, making it excessively vague. In
the absence of substantial pleadings, the
election petition is not maintainable and
should be dismissed at the outset.
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IV. It is submitted that the allegations
made by the petitioner in paragraph 6 lack
any evidence, pleadings, or a triable
cause of action. The claims are
excessively vague, and if admitted for
trial, they would not lead to any
conclusive outcome. No names of
persons, witnesses, places of incidents,
or specific details such as time and
relevant material facts have been
provided. Therefore, the contents of this
paragraph are entirely vague and should
be dismissed.
V. It is submitted that paragraph 7
contains vague pleadings regarding one
Sourabh Choubey, making it impossible
for a prudent person to ascertain his
identity or the relevance of the facts to
the case. The petition fails to specify his
father's name, residential address, or his
connection to the alleged occurrence.
Furthermore, no details or descriptions
regarding phone numbers have been
provided, nor have any material
particulars or supporting evidence been
mentioned. Given the lack of clarity, no
triable cause of action arises, and the trial
cannot proceed based on such vague
pleadings.
VI. It is humbly and respectfully submitted
that paragraphs 8, 9, 10, and 11 fail to
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specify the device or system through
which the alleged acts were carried out by
the petitioner. Without any concrete
records that can be presented and legally
proven before this Hon'ble Court, no
triable cause of action or issue arises for
conducting a trial. Therefore, the petition
is liable to be dismissed.
VII. It is humbly and respectfully
submitted that paragraph 12 contains
vague pleadings, and in the absence of
any triable cause of action or issue, no
trial can be initiated.
VIII. It is humbly and respectfully
submitted that paragraphs 13 and 14 lack
any description regarding to whom the
representation was given, on what date,
by whom, and at which place.
Furthermore, no specific affidavit has
been filed in support of the pleadings in
the preceding paragraphs, as required
under the Representation of the People
Act. Consequently, no triable cause of
action arises, and the election petition is
liable to be dismissed.
IX. It is humbly and respectfully submitted
that paragraph 15 fails to provide details
regarding the pleadings before the
Hon'ble High Court of Delhi, including the
parties involved and the specific prayer
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made. In the absence of such pleadings,
specific averments, and a supporting
affidavit, the present election petition is
not tenable.
X. It is humbly and respectfully submitted
that the pleadings in paragraphs 17, 18,
19, and 20 are excessively vague, making
it impossible for a prudent person to
reach a conclusion. These paragraphs fail
to disclose any triable cause of action or
issue, as they lack particular material
facts. The petitioner has not provided any
details regarding how the alleged
violation occurred, when and where it
took place, in what manner, and before
whom these acts were committed by
respondent No. 1. Furthermore, no
specific affidavit has been filed as
required under the provisions of the
Representation of the People Act.
Therefore, the present petition is liable to
be dismissed at the threshold.
XI. It is humbly and respectfully submitted
that the pleadings in paragraph 21 are
excessively vague, as they fail to specify
how the alleged violation occurred, before
whom it took place, who the witnesses
are, what was said, in what manner,
regarding which incident, at which place,
and on what date. In the absence of any
detailed description, the pleadings remain
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vague and insufficient. Therefore, the
election petition is liable to be dismissed.
XII. It is humbly and respectfully
submitted that paragraphs 22, 23, 24, 25,
26, 28, 29, 30, 31, 32, and 33 lack any
detailed description regarding the names
of the persons involved, the observer, the
date and manner of information, the
system through which the information
was conveyed, the identity of the person
delivering it, the place of delivery, the
method of communication, and how the
complaint was made. Given the vague
nature of the pleadings in these
paragraphs, the election petition is liable
to be dismissed.
XIII. It is humbly and respectfully
submitted that no specific affidavit has
been filed in support of the pleadings in
all the preceding paragraphs, as required
under the provisions of the
Representation of the People Act.
Therefore, the present election petition is
liable to be dismissed at the threshold."
Learned Senior Advocate appearing for the
respondent No. 1 would submit that the election petition
lacks material facts and the same cannot be considered to
be a valid petition as required under Section 83(1)(a) of the
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R.P. Act. There should be the essential facts to establish a
cause of action in the election petition, but in the present
petition it is completely missing. For this he would rely upon
the judgement passed by Hon'ble Supreme Court in "Karim
Uddin Barbhuiya v. Aminul Haque Laskar and Others"
2024 SCC Online SC 509, and would submit that the
election petition is liable to dismissed on this ground alone.
He would further submit that the petitioner's pleading
in the election petition is vague and general pleadings have
been made, whereas in the election petition there should be
the specific pleading on each and every allegations with
respect to corrupt practices. The requirement of Section 100
of the R.P. Act to show the clear cause of action has not
been fulfilled and therefore, the election petition is not
maintainable in absence of sufficient material pleadings in
the election petition. He would also submits that the election
petitioner has challenged the election of the respondent No.
1 and prayed for declaring his election as void and also
prayed for declaring the respondent No.1 as disqualified and
in view of the prayer made in the election petition, he has to
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implead all the contesting candidates of the election as
mandated by the provisions of Section 86 of the R.P. Act.
The contesting candidates are the necessary parties to the
election petition, but they have not been made as the party
respondent, therefore, there is a defect of non-joinder of the
necessary party and the election petition is liable to be
dismissed on this ground also. The petitioner has also
alleged about the corrupt practices against the respondent
No. 1, but there is no substantial pleadings in the election
petition for the same.
In support of his submissions, he would rely upon the
judgements of the Hon'ble Supreme Court reported in
"Samant N. Balkrishna v. George Fernandez" 1969 (3)
SCC 238, "Amin Lal v. Hunna Mal" 1965 (1) SCR 393,
"Major S.N. Tripathi v. Election Commission of India as
Registrar & Consultant and Ors." 2010 SCC Online SC
1980, "Krishan Chander v. Ram Lal" 1973 (2) SCC 759,
"Azhar Hussain v. Rajiv Gandhi" 1986 (Supp.) SCC 315,
"Kanimozhi Karunanidhi v. A. Santhana Kumar and
Ors." 2023 SCC Online SC 573, "F.A. Sapa v. Singora
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[F.A. Sapa v. Singora" 1991 (3) SCC 375, "V.
Narayanaswamy v. C.P. Thirunavukkarasu", 2000 (2)
SCC 294, "Ishwardas Rohani v. Alok Mishra" 2012 (7)
SCC 309, "Shiv Charan Singh v. Chandra Bhan Singh"
1988 (2) SCC 12, "Tatyasaheb v. Election Commr. of
India" 2011 SCC Online Bom. 1712, "Narayan Gunaji
Sawant v. Deepak Vasant Kesarkar" 2011 SCC Online
Bom. 205, "Nand Kumar Sahu v. Satyanarayan Sharma"
AIR 2015 Chhattisgarh 120, "Deepak Dubey v. Dr.
Khilawan Sahu" AIR 2016 Chhattisgarh 29, and prayed for
dismissal of the election petition.
Learned counsel for the petitioner would further
submit that with respect to the electronic device annexed
with the petition and copy of e-mail, no certificate of Section
65-B of the Indian Evidence Act, 1872 have been filed along
with the election petition and in view of the provisions under
the Information Technology Act, 2000, without there being
any substantive compliance, it cannot be considered to be
the admissible evidence and the election petition suffers with
material defect. It is also submitted that with respect to the
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alleged rally/road show, another petition was filed by one
Sourabh Choubey before the Delhi High Court in WPC No.
15473 of 2023, in which it has been submitted by him that
the Chief Electoral Officer has opined that there was no
violation of Model Code of Conduct, yet taking the same
issue as the ground of corrupt practice, the present election
petition has been filed, and therefore, the present petition is
not maintainable.
Learned counsel appearing for the election petitioner
would oppose the submissions made by learned counsel for
the respondent No. 1 and submits that the application under
Order 7 Rule 11 of the CPC has been filed at the advanced
stage of the election petition. After notice, the written
statement has been filed, issues have been framed, and
affidavits of the witnesses in the form of chief examination
under Order 18 Rule 4 of the CPC have been filed and
cross-examination has also been started, and only thereafter
the application has been filed. In such a belated stage, the
application under Order 7 Rule 11 of the CPC is not
maintainable.
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He would also submit that sufficient pleading
explaining all the details have been pleaded in the election
petition, and there is no defect in the election petition. The
admissibility of the document/article is to be decided during
the trial of the election petition, but it cannot be dismissed in
the initial stage. There is sufficient compliance of the
provisions of R.P. Act and Rules. The case of the election
petitioner is based on electronic evidence as well as oral
evidence, and although the mobile device is primary
evidence, the relevant certificate of Section 65-B of the
Indian Evidence Act, 1872 can also be filed at a later stage.
He would rely upon the judgment of M/s Bhagya
Estate Ventures Pvt. Ltd. v. Narne Estate Pvt. Ltd. &
Anr., Civil Appeal No. 4570 of 2023, decided on 11.09.2024
(Supreme Court), "Arjun Pandit Rao Khotkar v. Kailash
Kushan Rao Gorantyal" 2020 (7) SCC 1, and Saroj
Koomar Chandra and Others v. Digambar Sahu and
Others, order dated 13.12.2024, E.P. No. 04 of 2024
(Chhattisgarh High Court) and would submit that the
application filed by the respondent No. 1 under Order 7 Rule
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11 of Code of Civil Procedure may be dismissed and the
issue No. 6 may be decided in favour of the election
petitioner.
I have heard learned counsel for the parties and
perused the record with utmost circumspection and
considered their rival submissions.
The main contention of the learned Senior counsel
appearing for the respondent No.1 is that the election
petition, complete in all respects is not filed in accordance
with the Rules and there are lack of sufficient and material
pleadings, which does affect the maintainability of the
election petition, as all the contested candidates should be
made as a party respondents in the election petition, but in
the present petition, they have not been made as a party,
which suffers the defect as provided under Section 82 of the
R.P. Act. The provisions of Section 82 of the R.P. Act is
reproduced hereinbelow:-
"82. Parties to the petition.--A petitioner
shall join as respondents to his petition
--
(a) where the petitioner, in addition
to claiming a declaration that the
election of all or any of the returned
candidates is void, claims a further
declaration that he himself or any
other candidate has been duly
elected, all the contesting
candidates other than the petitioner,
and where no such further
declaration is claimed, all the
returned candidates; and
(b) any other candidate against
whom allegations of any corrupt
practice are made in the petition."
From perusal of provision of Section 82 of R.P. Act, it
appears that, where the petitioner claims a further
declaration that he himself or any other candidate has been
duly elected, all the contesting candidates, other than the
petitioner, shall be joined as a respondent and where, no
such further declaration is claimed all the returned
candidates shall join as respondents in the election petition.
In the present case, the election petitioner has made the
following prayer in Para 40 of his election petition, which is
necessary to reproduce here:-
"(a) the election of the returned
candidate, ie; the respondent No. 1 from
Patan Assembly Constituency, of
Chhattisgarh Legislative Assembly be
declared void and set aside,
(b) the respondent be declared to be
disqualified from contesting the
elections;
(c) Allow the cost of this petition to the
petitioner, and;
(d) Allow such other relief or pass such
other orders as deemed fit and proper in
the facts and circumstances of the case
in favour of the petitioner and justice be
done."
It is quite vivid from the prayer made in the election
petition that the election petitioner has not claimed that he
himself may be declared as a returned candidate or elected
and then he is required to implead the returned candidates in
the election petition as respondents. It is only the respondent
No.1 is returned candidate from Patan Constituency No. 62
of Chhattisgarh Legislative Assembly. There is no other
returned candidate from that constituency and the returned
candidate Mr. Bhupesh Baghel has been made as the
respondent No.1 in the election petition, and therefore, there
is no such defect of non-joinder of necessary parties to
implead other candidates as respondents in the election
petition. The election petition cannot be dismissed on that
ground.
Another ground raised by the respondent No.1 for
rejection of the election petition that, a separate affidavit
containing the details have not been filed along with the
election petition as required under the proviso of Section
83(1) of the R.P. Act. Section 83 of the R.P. Act is also
quoted hereinbelow:-
"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
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"
It is also necessary to quote Section 86 of the R.P.
Act, which reads as under:-
"86. Trial of election petitions.--(1) The
High Court shall dismiss an election
petition which does not comply with the
provisions of section 81 or section 82 or
section 117.
Explanation.--An order of the High Court
dismissing an election petition under this
sub-section shall be deemed to be an
order made under clause (a) of section 98.
(2) As soon as may be after an election
petition has been presented to the High
Court, it shall be referred to the Judge or
one of the Judges who has or have been
assigned by the Chief Justice for the trial
of election petitions under sub-section (2)
of section 80A.
(3) Where more election petitions than
one are presented to the High Court in
respect of the same election, all of them
shall be referred for trial to the same
Judge who may, in his discretion, try
them separately or in one or more groups.
(4) Any candidate not already a
respondent shall, upon application made
by him to the High Court within fourteen
days from the date of commencement of
the trial and subject to any order as to
security for costs which may be made by
the High Court, be entitled to be joined as
a respondent.
Explanation.--For the purposes of this
sub-section and of section 97, the trial of
a petition shall be deemed to commence
on the date fixed for the respondents to
appear before the High Court and answer
the claim or claims made in the petition.
(5) The High Court may, upon such terms
as to costs and otherwise as it may deem
fit, allow the particulars of any corrupt
practice alleged in the petition to be
amended or amplified in such manner as
may in its opinion be necessary for
ensuring a fair and effective trial of the
petition, but shall not allow any
amendment of the petition which will have
the effect of introducing particulars of a
corrupt practice not previously alleged in
the petition.
(6) The trial of an election petition shall,
so far as is practicable consistently with
the interests of justice in respect of the
trial, be continued from day to day until
its conclusion, unless the High Court
finds the adjournment of the trial beyond
the following day to be necessary for
reasons to be recorded.
(7) Every election petition shall be tried as
expeditiously as possible and endeavour
shall be made to conclude the trial within
six months from the date on which the
election petition is presented to the High
Court for trial."
In the matter of "G.M. Siddheshwar v. Prasanna
Kumar" 2013(4) SCC 774, the Hon'ble Supreme Court has
held that the affidavit as required by the proviso to Section
83(1) of the R.P. Act is not an integral part of the election
petition. Absolute compliance of format of affidavit is not
necessary and substantial compliance of format is sufficient.
It has also been held that, any defect in affidavit or its
verification is curable.
From perusal of the election petition, there is an
affidavit in Page 18 of the election petition in support of the
election petition and further, another affidavit of the petitioner
is annexed with the petition at Page 39, as required under
Section 126(1) of the R.P. Act. Therefore, it cannot be said
that the petition suffered by substantial compliance of non-
filing of the affidavit in format in support of the election
petition. As has been held by the Hon'ble Supreme Court in
the matter of "G.M. Siddheshwar" (supra), the affidavit is not
an integral part of the election petition and it can be cured,
and thus, election petition cannot be rejected on that ground.
The further submission of the respondent No.1 that
the index attached with the election petition, does not bear
with any verification and no list of documents mentioned in
the index. The index is the necessary part of the election
petition and therefore, there is the procedural defect in the
election petition and same is liable to be rejected. It is also
submitted that there is no details of e-mail chats, no details
of all the documents and there is no detail of material facts
with respect to the electronic device from whose mobile the
rally/road show was videographed, who recorded the same
and who was the owner of that phone. Likewise, in whose g-
mail account it was sent and from which device, it was sent.
Only the photocopy of the g-mail has been produced without
any certificate of Section 65-B of the Indian Evidence Act,
1872. Therefore, the election petition is liable to be rejected.
The material fact is having an elastic definition, which
includes bundle of facts. The index part of the petition cannot
be the integral part of the election petition, but it is a
sequence of the material annexed with the petition, which is
to be filed for convenience of the Court as well as the
parties. It does not require any verification or details of the
documents annexed with the petition. Only the identification
of the documents is sufficient for its indexing. The dictionary
meaning of index is to the effect that a list in order from A to
Z, usually at the initial page or end of the petition contained
the part of the material annexed with the petition. It is only a
compilation of the things attached thereto. There is
absolutely no requirement that it should be verified or
supported by an affidavit as the index is not the part of the
prayer.
So far as the detailed pleadings of the facts in the
petition are concerned, the election petitioner has filed the
present election petition on the ground that in the silence
period, the respondent No.1 had organized rally/road show
and violated the conditions and guilty of corrupt practices
and on that ground his election is void. It is also the pleading
of the petitioner that the rally/road show was videographed
by the election agent and immediately he took action and
sent it to election observer through e-mail and mobile phone.
From perusal of the election petition, it appears that there
are sufficient pleading with respect to the allegations made
by the election petitioner, which are sufficient to constitute
the triable cause of action against the respondent No.1.
Whether or not, the election petitioner can prove his
allegation with respect to corrupt practices against the
respondent No.1 is the subject matter of trial and burden of
proof upon the parties.
In the matter of "Ram Sukh v. Dinesh Aggarwal"
2009 (10) SCC 541, the Hon'ble Supreme Court in Para 12,
13 and 15 to 20 held that:-
"12. 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 is
as to whether the election petitioner had
set out "material facts" in his petition?
13. 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 bundle of facts which
would constitute a complete cause of
action. In other words, "material facts"
are facts upon which the plaintiff's cause
of action or defendant's defence depends.
(See: Mahadeorao Sukaji Shivankar Vs.
Ramaratan Bapu & Ors.). 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
universal application can be laid down.
15. At this juncture, in order to appreciate
the real object and purport of the phrase
"material facts", particularly with
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 basic facts which
have to be pleaded by the petitioner to
prove his cause of action and by the
defendant to prove his defence.
"Particulars", on the 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 already drawn so as
to 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.
16. The distinction between "material
facts" and "particulars" and their
requirement in an election petition was
succinctly brought out by this Court in
Virender Nath Gautam Vs. Satpal Singh &
Ors., wherein C.K. Thakker, J., stated
thus: (SCC p.631, para 50)
"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 only relevant facts
required to be proved at the trial in
order to establish the fact in issue."
17. Now, before examining the rival
submissions in the light of the
aforestated 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.
In our opinion, both the contentions are
misconceived and untenable.
18. 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 VII 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 not be permitted to
occupy the 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
reposed confidence in him. The
submission, therefore, must fail.
19. 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 res-integra. A
similar plea was negatived by a three-
Judge Bench of this Court in Hardwari Lal
Vs. Kanwal Singh, wherein speaking for
the Bench, A.N. Ray, J. (as His Lordship
then was) said: (SCC p.221, para 23)
"23. Counsel on behalf of the
respondent submitted that an
election petition could not be
dismissed by reason of want of
material facts because Section 86 of
the Act conferred power on the High
Court to dismiss the election
petition which did not comply 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, 1908, to the trial of suits.
A suit which does not furnish cause
of action can be dismissed."
20. The issue was again dealt with by this
Court in Azhar Hussain Vs. Rajiv Gandhi.
Referring to earlier pronouncements of
this Court in Samant N. Balkrishna
(supra) and Udhav Singh Vs. Madhav Rao
Scindia wherein it was observed that the
omission of a single material fact would
lead to incomplete cause of action and
that an election petition 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 of 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."
Another ground raised by the respondent No.1 that,
one Mr. Sourabh Choubey has already filed a WPC No.
15473 of 2023 before the Delhi High Court, in which the
complaint dated 16.11.2023 and representation dated
29.11.2023 were the subject matter and in the present
petition also the said complaints are the subject matter of
cause of action. In the writ petition filed before the Delhi High
Court, it has come that the Chief Electoral Officer has opined
that there was no violation of Model Code of Conduct,
therefore, there is no cause of action available to the election
petitioner to prosecute the present petition, and the same is
liable to be rejected.
From perusal of the order dated 01.12.2023, passed
in WPC No. 15473 of 2023 by the Delhi High Court, it
appears that the petitioner in that petition had made a
submission that he received a response from the Chief
Electoral Officer and the said writ petition was disposed of
reserving liberty to the petitioner to take such remedies
against the communication of the Chief Electoral Officer
before the appropriate forum, as may be advised. After the
election, the election petitioner has filed the election petition
on the ground of corrupt practices adopted by the returned
candidate/respondent No.1 that during the silence period, he
organized rally/road show. To prove the fact, he pleaded the
necessary facts and produced the mobile phone, in which
the said rally/road show was videographed and printed copy
of e-mail extracted from the website. There was no
adjudication in the matter from Delhi High Court and the
order dated 01.12.2023, passed in WPC No. 15473 of 2023,
does not affect the maintainability of the present petition.
The respondent No.1 also raised the submissions
with respect to the requirement of certificate under Section
65-B of the Indian Evidence Act, 1872 and submitted that
without there being any substantive compliance, the
electronic devices cannot be considered to be the admissible
evidence and without there being any admissible evidence,
there can be no sufficient pleading in the petition and the
same is liable to be rejected. He would also draw the
attention of this Court to the definition of Section 2(ha), (i),
(j), (o), (r), (zh) and Section 3 of the Information Technology
Act, 2000.
The submissions raised by the learned counsel
appearing for the respondent No.1 cannot be appreciated at
this stage, because it relates to the admissibility of the
document/electronic device at the time of its admission as
evidence in appropriate stage. Whether or not, the
evidence/electronic device is primary evidence, certificate
under Section 65-B of the Indian Evidence Act is required or
not, are to be considerable issues at the time of admission of
the document in evidence.
In the matter of "Kanimozhi Karunanidhi v. A.
Santhana Kumar and others" 2023 SCC Online SC 573,
the Hon'ble Supreme Court has held that, Section 83(1)(a) of
the RP Act mandates that an election petition shall contain a
concise statement of material facts, on which the petitioner
relies, but from perusal of the pleadings of the election
petition, it appears that there is sufficient pleading in the
election petition with respect to the allegations of corrupt
practices and the election petition cannot be rejected on this
ground also.
The judgments cited by both the parties, though are
relevant with respect to the maintainability of the election
petition on various defects in the election petition, but in view
of the aforesaid considerations, those judgments cannot be
benefited to the parties.
From the consideration of entire material produced in
the election petition, pleadings of the parties and also the law
laid down by the Hon'ble Supreme Court governing the field
in the provisions of Order 7 Rule 11 of CPC, as well as the
preliminary issue, this Court is of the opinion that there are
sufficient materials to proceed with the election petition and it
cannot be rejected at this stage. Accordingly, the application
filed by the respondent No.1 (I.A. No. 7 of 2025) under Order
7 Rule 11 of CPC is rejected and the issue No. 6 is also
decided in favour of the election petitioner that the election
petition cannot be dismissed for non-fulfilling the compulsory
requirements outlined under Sections 80, 81, 82 and 100 of
the R.P. Act.
Let the matter be again listed for further consideration
on 18th of June, 2025.
Sd/-
(Ravindra Kumar Agrawal)
Judge
ved
