Manipur High Court
Shri Lorho S. Pfoze vs Houlim Shokhopao Mater @ Benjamin on 25 March, 2021
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IN THE HIGH COURT OF MANIPUR
AT IMPHAL
M.C. (E.P.) No. 25 of 2020
Ref:- El. Petn. No. 1 of 2019
Shri Lorho S. Pfoze, aged about 59 years, s/o Late A.
Sibo Pfoze, resident of Kayinu village, PO & PS Mao,
District Senapati, Manipur-795150, presently residing at
Quarter No. Type-VII/NC-3, Lamphelpat, Imphal West,
Manipur-795004.
-- -- -- Applicant
- VERSUS -
1. Houlim Shokhopao Mater @ Benjamin, aged about
36 years, s/o (L) H. Jamkhokhai Mate, resident of
Tengnoupal Village PO & PS Tengnoupal, District
Tengnoupal, Manipur-795131.
-- -- -- Respondent
2. Angam Karung Kom, aged about 63 years, s/o Late
Ashong Kom, resident of K.R. Lane, P.O. & P.S.
Porompat, District Imphal East, Manipur-795005.
3. Shri Hangkhanpau Taithul, aged about 55 years,
S/o (l) T. Doupu, resident of Singngat Hausa Veng,
P.O. & P.S. Singngat, Churachandpur District,
Manipur-795139.
4. Shri Ashang Kasar @ Wungnaoshang Kasar @
Wungnao Shang Kasar, aged about 43 years, s/o
MC(E.P.) No. 25 of 2020
Ref:-El.Petn. No. 1 of 2019
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Ngashathing Kasar, resident of Chadong Village,
P.O. & P.S. Litan, Kamjong District, Manipur-
795145.
5. Leikhan Kaipu, aged about 54 years, s/o Late
Leikhan Kokan, resident of Heikakpokpi Village,
P.O. Pallel, P.S. Machi, Machi Sub-Division,
Tengnoupal District, Manipur-795135.
6. Thangminlien Kipgen, aged about 64 years, S/o
Late Thangpu Kipgen, resident of Haipu Village,
P.O. Kalaphar, Kangpokpi, District, Manipur-
795122.
7. Shri K. James, aged about 56 years, S/o Late K.
Ngatangmi, resident of Tangkhul Hundung Khullen,
P.O. Lamlong, P.S. Litan, Kamjong District,
Manipur-795010. Presently residing at JIM Blessing
Home, Sangaiprou Mamang Leikai, Airport Road,
P.O. & P.S. Singjamei, Imphal West District,
Manipur-795008.
-- -- -- Proforma Respondents
BEFORE
HON'BLE MR. JUSTICE M.V. MURALIDARAN
For the Applicant :: Mr. H.S. Paonam, Sr. Advocate
For the Respondent :: Mr. A. Mohendro, Advocate.
Reserving Judgment
& Order :: 03.03.2021
Date of Judgment &Order :: 25.03.2021
MC(E.P.) No. 25 of 2020
Ref:-El.Petn. No. 1 of 2019
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JUDGMENT AND ORDER
(CAV)
This miscellaneous application has been filed by the
applicant under Order VII, Rule 11 read with Section 151 of the
Code of Civil Procedure, 1908 seeking to dismiss the election
petition as it has failed to disclose the cause of action in terms of
the relevant provisions of the Representation of the People Act,
1951.
2. The applicant herein is the first respondent in the
election petition and he has filed the present petition stating that he
defeated the election petitioner by a huge margin of 73,782 votes.
According to the applicant, he is seeking rejection of the election
petition in accordance with the provisions of Order VII, Rule 11
CPC, as the election petition failed to disclose the actual cause of
action against the respondents in terms of the relevant provisions
of the Representation of the People Act, 1951 (hereinafter referred
to as "the said Act").
3. The case of the applicant is that the alleged violation
of Section 33 of the said Act stated by the election petitioner is
irrelevant for consideration of declaring the election of the applicant
MC(E.P.) No. 25 of 2020
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as void and therefore, the provision as enunciated by the election
petitioner would not in any manner attract for consideration as to
whether a cause of action for declaring the election of the applicant
as void. Though the election petitioner stated number of Provisions
of the said Act, the Conduct of Election Rules as well as other
notifications/guidelines/ circulars, he has failed to specifically
pleaded any kind of the violation and non-compliance of the
aforesaid Acts, Rules and guidelines. Thus, the provision as
enunciated by the election petitioner would not in any manner
attract for consideration as to whether a cause of action for
declaring the election of the applicant as void.
4. Resisting the application, the election petitioner has
filed affidavit-in-opposition stating that he has specifically stated the
grounds under which the election of the applicant has been
materially affected by improper acceptance of his nomination. It is
stated that violation of Section 33 of the said Act by the applicant is
very much relevant, as the same establishes that the nomination of
the application was invalid and his nomination had been improperly
accepted which leads to the ultimate conclusion that the election of
the applicant is liable to be declared as void under Section
100(1)(d)(i) of the said Act. It is also stated that the election
petitioner has disclosed al| relevant and material facts in the
MC(E.P.) No. 25 of 2020
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election petition and the details of specific violations of law as well
as the commission of corrupt practice have been made. Further, the
contents of the election petition have been made in due compliance
of the provisions under Section 83 of the said Act and there is no
defect in the same. As such the election petitioner has correctly
disclosed the cause of action in the election petition and prayed thus
for dismissal of the application.
5. The learned counsel for the applicant submitted that
the election petitioner has failed to substantiate his allegations with
cogent materials and that the election petitioner alleged that the
nomination of the applicant was abruptly and improperly accepted
by the Returning Officer and there was no proper scrutiny as
envisaged under Section 36(2) of the said Act, which is baseless
and frivolous, inasmuch as qua the said allegation, the election
petitioner has neither on the particular date i.e., 26.3.2019 nor
thereafter, made any complaint to the Returning Officer.
6. The learned counsel further submitted that the election
petitioner has filed the election petition only after being defeated
and that on a reading of the averments made in the election petition,
it is clear that the election is manifestly vexatious and without any
MC(E.P.) No. 25 of 2020
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merit and in fact, it does not disclose a cause of action but has tried
to mislead the Court by Creating an illusion of a cause of action.
7. In support of his contentions, the learned counsel for
the applicant has relied on the decisions reported in the cases of
V.Narayanaswamy v. C.P.Thirunavukkarasu, (2000) 2 SCC 294;
Virender Nath Gautam v. Satpal Singh and others, (2007) 3 SCC
617 and Anil Vasudev Salgaonkar v. Naresh Kushali
Shigaonkar, (2009) 9 SCC 310.
8. Per contra, the learned counsel for the first
respondent/election petitioner submitted that the election petitioner
has specifically sought the ground under Section 100(1)(d)(i) of the
said Act for declaring the election of the applicant as void and in
fact, there is violation of Section 33 of the said Act by the applicant
and that his nomination was improperly accepted by the Returning
Officer.
9. The learned counsel for the election petitioner further
submitted that the election of the applicant is sought to be declared
void under Section 100(1)(b) and Section 100(1)(d)(i) and (iv) and
not under Section 100(1)(d)(iii) of the said Act. He would submit that
pleadings have been specifically made in the election petition
MC(E.P.) No. 25 of 2020
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regarding several violations of the Acts and Rules etc. based on
which the election of the applicant is liable to be declared void.
10. The learned counsel then submitted that the question
as to whether the evidences are sufficient or not has to be
determined only after settling the issues, Oral and documentary
evidences. Therefore, the allegations of the applicant are baseless
and only to delay the proceedings of the election petition, the
applicant has filed the present petition. He submits that the cause
of action for filing the election petition has been sufficiently
disclosed in the election petition.
11. To fortify his submissions, the learned counsel has
relied on the following decisions:
1. Samant N.Balkrishna and another v.
V.George Fernandez and others, (1969) 3
SCC 238.
2. D.Ramachandran v. R.V.Janakiraman and
others, (1999) 3 SCC 267.
3. Virender Nath Gautam v. Satpal Singh and
others, (2007) 3 SCC 617.
4. Ponnala Lakshmaiah v. Kommuri Pratap
Reddy and others, (2012) 7 SCC 788.
MC(E.P.) No. 25 of 2020
Ref:-El.Petn. No. 1 of 2019
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5. Kisan Shankar Kathore v. Arun Dattatray
Sawant and others, (2014) 14 SCC 162.
6. Ashraf Kokkur v. K.V. Abdul Khader, (2015)
1 SCC 129.
7. Order in MC (EP) No.6 of 2017 in Election
Petition No.4 of 2017, decided on 4.1.2018
on the file of the Manipur High Court.
8. Order in MC (EP) No.12 of 2018 in Election
Petition No.12 of 2017, decided on
22.1.2019.
12. This Court considered the submissions raised by the learned
counsel appearing on either side and also perused the materials
available on record.
13. The grievance of the applicant is that the election
petition is liable to be rejected on the ground that it does not disclose
the cause of action in terms of the relevant provisions of the said
Act.
14. On the other hand, the election petitioner contends
that the cause of action for filing the election petition has been
substantially disclosed in the election petition and whether any
objection was made before the Returning Officer or not is irrelevant
MC(E.P.) No. 25 of 2020
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and the point for consideration is whether the nomination of the
applicant ought to have been rejected by the Returning Officer at
the time of scrutiny for reasons of non-fulfilment of mandatory
provisions of the law.
15. The applicant has filed the present application under
Order VII, Rule 11 of CPC praying for rejection of the Election
Petition No.1 of 2019. The election petitioner assails the election of
the applicant to be the returned candidate of 2-Outer Manipur (ST)
Parliamentary Constituency in the General Election to 17% Lok
Sabha, 2019 on the ground of improper acceptance of nomination
paper of the applicant and also for commission of corrupt practices
coupled with a prayer for declaring the election petitioner to be the
duly elected member from the aforesaid constituency.
16. Admittedly, no written statement yet filed in the
election petition by the applicant.
17. Placing reliance upon the decisions cited supra, the
learned counsel for the applicant argued that an election petition is
based on the rights, which are purely the creature of a statute, and
if the statute renders any particular requirement mandatory, the
Court cannot exercise dispensing powers to waive non-compliance
and for the purpose of considering a preliminary objection as to the
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maintainability of the election petition, the averments in the petition
should be assumed to be true and the Court has to find out whether
these averments disclose a cause of action or a triable issue as
such; that all material facts, therefore, in accordance with the
provisions of the said 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 Section
83(1)(a) of the said Act read with Order VII, Rule 11(a) of CPC; and
that the election petition can be summarily dismissed if it does not
furnish the cause of action in exercise of the power under the CPC.
18. In V. Narayanaswamy (supra), the Hon'ble Supreme
Court held :
"23. It will be thus seen that an election
petition is based on the rights, which are
purely the creature of a statute, and if the
statute renders any particular requirement
mandatory, the court cannot exercise
dispensing powers to waive non-
compliance. For the purpose of
considering a preliminary objection as to
the maintainability of the election petition
MC(E.P.) No. 25 of 2020
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the averments in the petition should be
assumed to be true and the court has to
find out whether these averments disclose
a cause of action or a triable issue as such.
Sections 81, 83(1)(c) and 86 read with
Rule 94-A of the rules and Form 25 are to
be read conjointly as an integral scheme.
When so read if the court finds non-
compliance it has to uphold the preliminary
objection and has no option except to
dismiss the petition. There is difference
between "material facts" and "material
particulars". While the failure to plead
material facts is fatal to the election petition
the absence of material particulars can be
cured at a later stage by an appropriate
amendment. "Material facts" mean the
entire bundle of facts, which would
constitute a complete cause of action and
these must be concisely stated in the
election petition, i.e., clause (a) of sub-
section (1) of Section 83. Then under
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clause (b) of sub-section (1) of Section 83
the election petition must contain full
particulars of any corrupt practice. These
particulars are obviously different from
material facts on which the petition is
founded. A petition levelling a charge of
corrupt practice is required by law to be
supported by an affidavit and the election
petitioner is obliged to disclose his source
of information in respect of the commission
of corrupt practice. He must state which of
the allegations are true to his knowledge
and which to his belief on information
received and believed by him to be true. It
is not the form of the affidavit but its
substance that matters. To plead corrupt
practice as contemplated by law it has to
be specifically alleged that the corrupt
practices were committed with the consent
of the candidate and that a particular
electoral right of a person was affected. It
cannot be left to time, chance or conjecture
MC(E.P.) No. 25 of 2020
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for the court to draw inference by adopting
an involved process of reasoning. Where
the alleged corrupt practice is open to two
equal possible inferences the pleadings of
corrupt practice must fail. Where several
paragraphs of the election petition alleging
corrupt practices remain unaffirmed under
the verification clause as well as the
affidavit, the unsworn allegation could
have no legal existence and the court could
not take cognizance thereof. Charge of
corrupt practice being quasi-criminal in
nature the court must always insist on strict
compliance with the provisions of law. In
such a case it is equally essential that the
particulars of the charge of allegations are
clearly and precisely stated in the petition.
It is the violation of the provisions of
Section 81 of the Act which can attract the
application of the doctrine of substantial
compliance. The defect of the type
provided in Section 83 of the Act on the
MC(E.P.) No. 25 of 2020
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other hand can be dealt with under the
doctrine of curability, on the principles
contained in the Code of Civil Procedure.
Non-compliance with the provisions of
Section 83 may lead to dismissal of the
petition if the matter falls within the scope
of Order 6 Rule 16 and Order 7 Rule 11 of
the Code of Civil Procedure. Where neither
the verification in the petition nor the
affidavit gives any indication of the sources
of information of the petitioner as to the
facts stated in the petition which are not to
his knowledge and the petitioner persists
that the verification is correct and the
affidavit in the form prescribed does not
suffer from any defect the allegations of
corrupt practices cannot be inquired and
tried at all. In such a case the petition has
to be rejected on the threshold for non-
compliance with the mandatory provisions
of law as to pleadings. It is no part of the
duty of the court suo motu even to direct
MC(E.P.) No. 25 of 2020
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furnishing of better particulars when
objection is raised by the other side. Where
the petition does not disclose any cause of
action it has to be rejected. The court,
however, cannot dissect the pleadings into
several parts and consider whether each
one of them discloses a cause of action.
The petition has to be considered as a
whole. There cannot be a partial rejection
of the petition."
19. In Virender Nath Gautam (supra), the Hon'ble
Supreme Court held:
"29. From the relevant provisions of the Act
reproduced hereinabove, it is clear that an
election petition must contain a concise
statement of "material facts" on which the
petitioner relies. It should also contain "full
particulars" of any corrupt practice that the
petitioner alleges including a full statement of
names of the parties alleged to have committed
such corrupt practice and the date and place of
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commission of such practice. Such election
petition shall be signed by the petitioner and
verified in the manner laid down in the Code of
Civil Procedure, 1908 (hereinafter referred to as
"the Code") for the verification of pleadings. It
should be accompanied by an affidavit in the
prescribed form in support of allegation of such
practice and particulars thereof.
30. 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.
31. 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",
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"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 his claim or 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.
32. In the leading case of Philipps v. Philipps,
(1878) 4 QBD 127 : 48 LJ QB 135, Cotton, L.J.
stated:
"What particulars are to be stated must
depend on the facts of each case. But in my
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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."
33. In Bruce v. Odhams Press Ltd.2, Scott, L.J.
referring to Philipps v. Philipps1 observed: (All ER
p. 294)
"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); or 'a further and better statement of
claim' may be ordered under Rule 7."
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34. 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.
35. 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 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
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the details of the case which is in the nature of
evidence a party would be leading at the time of
trial.
.....
51. In our considered opinion, material facts
which are required to be pleaded in the election
petition as required by Section 83(1) of the Act
read with Order 7 Rule 11(a) of the Code have
been pleaded by the election petitioner, cause of
action has been disclosed in the election petition
and, hence, the petition could not have been
dismissed by the High Court. The impugned order
of the High Court suffers from infirmity and cannot
be sustained.
52. The High Court, in our considered opinion,
stepped into prohibited area of considering
correctness of allegations and evidence in
support of averments by entering into the merits
of the case which would be permissible only at the
stage of trial of the election petition and not at the
stage of consideration whether the election
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petition was maintainable and dismissed the
petition. The said action, therefore, cannot be
upheld and the order deserves to be set aside.
53. On an additional ground also, the order of the
High Court is liable to be set aside. All allegations
in para 8 of the election petition, as also sub-
paras (i) to (iv) of para 8 relate to improper and
illegal reception and acceptance of votes and the
election petitioner has challenged the election of
the returned candidate on that ground and not on
the ground of "corrupt practice". He was,
therefore, required to state material facts in the
election petition under Section 83(1)(a) of the Act.
It was, however, not necessary to "set forth full
particulars", which is the requirement of Section
83(1)(b) of "any corrupt practice"."
20. In Anil Vasudev Salgoankar (supra), the Hon'ble
Supreme Court held:
"50. The position is well settled that an
election petition can be summarily dismissed
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if it does not furnish the cause of action in
exercise of the power under the Code of Civil
Procedure. Appropriate orders in exercise of
powers under the Code can be passed if the
mandatory requirements enjoined by Section
83 of the Act to incorporate the material facts
in the election petition are not complied with."
21. It has been stated by the applicant that the applicant
defeated the election petitioner by a huge margin of 73,782 votes
i.e., the applicant got 3,63,527 votes and the election petitioner got
2,89,745 votes and as such the election petition has been filed out
of sheer desperation and without disclosing the cause of action.
22. It has been submitted on the behalf of the election
petitioner that the election petitioner has specifically pleaded in
paragraph 13 that on 26.3.2019, during the scrutiny, the Returning
Officer, 2-Outer Manipur (ST) Parliamentary Constituency, abruptly
and improperly accepted the nomination paper of the first
respondent in the election petition (applicant herein) and there was
no proper scrutiny as envisaged under Section 36(2) of the said Act.
The election petitioner stated that the affidavit filed by the applicant
(first respondent in the election) suffers from the following defects:
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(i) The respondent No.1 kept the column 5 of
para 4 of the affidavit as blank as nothing is
filled up in the relevant column.
(ii) The gross total value disclosed by the
respondent No.1 at para 7-A(ix) showing
Rs.52,23,704/- for self and Rs.2,35,648/- for
spouse are not correct and misleading.
Hence, he filed a false affidavit.
(iii) The first respondent failed to disclose vital
material information in his affidavit pertaining
to his non-agricultural lands and other interest
in immovable properties at para 7-B(ii) and (v)
despite having owning immovable properties
at Kayinu village, Mao, Senapati District,
Manipur, thereby rendering his nomination as
invalid and void.
(iv) The first respondent failed to disclose the
relevant details for showing a sum of
Rs.1,12,50,000/- at para 7-B(vi) of his affidavit
and as such, he filed a false affidavit. (v) The
first respondent also furnished misleading
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and false particulars/information at para 9B(f)
of his affidavit. He failed to disclose the details
of contracts entered into by private
companies in which candidate or spouse or
dependents have share.
(vi) The particulars disclosed in the affidavit at
para B, para 11 (8)(A) for the candidate and
his spouse are falsely shown to be only
Rs.3,24,704/and Rs.2,20,648/respectively.
These are contradictory to the particulars
entered at part A of the same affidavit.
(vii) The particulars shown at para (11) 8B(iii)(b) of
part B of the affidavit is also false as he
disclosed only a sum of Rs.80,00,000/- being
the value of inherited immovable property at
part A, para 7B(iv) of the affidavit.
23. In Samant (supra), the Hon'ble Supreme Court held
that the election petition must set out the material facts on which a
charge can be made and mere repetition of the words of the statute
does not amount to proper statement of facts. The material facts
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must be stated in the petition and if they are missing, it is impossible
to think that the charge has been made or can be later amplified.
24. In D.Ramachandran (supra), the Hon'ble Supreme
Court held that distinction is to be made between the terms "full
particulars" and "material facts", however Court cannot dissect the
pleadings and struck out portion of it. The Hon'ble Supreme Court
further held that it was otherwise found that the facts and cause of
action disclosed in the petition were sufficient regarding the
averments of the case and were sufficient to void the election in
case, it is adjudicated upon and therefore, it could not be said that
full particulars were not mentioned in the petition.
25. In Ponnala Lakshmaiah, the Hon'ble Supreme Court
observed that there is no denying the fact that Courts are competent
to dismiss petitions not only on the ground that the same do not
comply with Provisions of Sections 81, 82 and 117 of the
Representation of the People Act, 1941 but also on the ground that
the same do not disclose any cause of action. The expression
"cause of action" has not been defined either in the CPC or
elsewhere and is more easily understood than precisely defined.
26. In Kishan Shankar Kathore (supra), the Hon'ble
Supreme Court held that even the non-disclosure of the outstanding
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dues due to the electricity department in the nomination amounted
to substantive defect.
27. In Kishan Shankar Kathore (supra), the Hon'ble
Supreme Court relied upon the decision in the case of Union of
India v. Association for Democratic Reforms and another
(2002) 5 SCC 294, wherein it has been held that it was incumbent
upon every candidate, who is contesting the election, to give
information about his assets and other affairs, which requirement is
not only essential part of fair and free elections, inasmuch as, every
voter has a right to know about these details of the candidates, such
a requirement is also covered by freedom of speech granted under
Article 19(1)(a) of the Constitution of India.
28. In Ashraf Kokkur (supra), the Hon'ble Supreme Court
held that the election petition having disclosed a cause of action, it
should not have been thrown out at the threshold.
29. In MC(EP) No.6 of 2017 in Election Petition No.4 of
2017, decided on 4.1.2018, this Court held that whether the
allegations of the election petitioner are correct or not has to be
proved by the petitioner and further, as to whether, filing of the
affidavit by the returned candidate was false or not and whether the
alleged false affidavit would amount to violation of the provisions of
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Section 33 of the RP Act, 1951 so as to render the election of the
respondent no.1 void, are to be considered by this Court in course
of the election trial.
30. In MC(EP) No.12 of 2018 in Election Petition No.12 of
2017, decided on 22.1.2019, this Court held that after going through
the averments made in the election petition as a whole, it cannot be
said that the petition does not contain a concise statement of
material facts. In fact, it does disclose a cause of action. It was
further held that whether Or not the respondent no.1 is able to prove
the allegations is a matter of evidence which can be considered only
at the state of trial, as has been held by the Hon'ble Supreme Court.
31. It is submitted on behalf of the election petitioner that
Section 78 of the said Act provides that every Candidate has to
lodge a true account of his election expenses maintained under
Section 77 of the said Act with the District Election Officer within 30
days from the date of declaration of the result of the election.
Further, Section 123(6) of the said Act provides that incurring or
authorizing of expenditure in contravention of Section 77 of the said
Act is a corrupt practice committed by the candidate or his
authorized election agent in the election. According to the election
petitioner, the applicant has failed to open the bank account to be
MC(E.P.) No. 25 of 2020
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used exclusively for the purpose of election expenditure before the
date of his nomination as would be evident from the affidavit under
Form 26 filed along with his nomination, wherein no such bank
account was disclosed. Stating so, the learned counsel for the
election petitioner submitted that since the applicant failed to
maintain true and correct account of all expenditures in connection
with the election in violation of Section 77 of the said Act and has
committed corrupt practice as defined under Section 123(6) of the
said Act, the election of the applicant is liable to be declared as void
under Section 100(1)(b) and Section 100(1)(d)(i) and (iv) of the said
Act. Thus, the election petitioner contends that he had clearly
mentioned the facts which constitute the Cause of action and
prayed for dismissal of the miscellaneous application filed by the
applicant.
32. In fact, the applicant has failed to produce any
materials to thrown out the arguments of the learned counsel for the
election petitioner. The applicant simply stated that the election
petition has failed to disclose the actual cause of action against the
respondents in terms of the provisions of the said Act.
33. On thorough reading of the election petition, the
election petitioner averred that on 26.3.2019 during the scrutiny, the
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Returning Officer, improperly accepted the nomination paper of the
applicant and there was no proper scrutiny as per Section 36(2) of
the said Act. On further reading of the election petition, the election
petitioner in paragraph 38 stated as under:
"38. That the cause of action for filing the
present Election Petition arose on 23.05.2019
when the result of the Election was declared by
the Returning Officer, 2 - Outer Manipur (ST)
Parliamentary Constituency and the same is
continuing within the jurisdiction of the Hon'ble
Court,"
34. When this Court read over the averments set out in the
election petition wholly, it is clear that the election petitioner has
stated full and material particulars following the cause of action for
filing the election petition. Prima facie, the election petitioner has
narrated in the election petition regarding the non-disclosure of
election expenditure incurred by the applicant.
35. The election petition as such does disclose a cause of
action which if unrebutted could void the election and the provisions
of Order VII, Rule 11 CPC cannot therefore be invoked in this case.
There is no substance in the contention that some of the allegations
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are bereft of material facts and as such do not disclose a cause of
action. It is elementary that under Order VII, Rule 11(a) CPC, the
Court cannot dissect the pleading into several parts and consider
whether each of them discloses a cause of action.
36. It is apposite to note at this juncture that as per the
instructions of the Election Commission, all bills and vouchers for
expenditures incurred by the candidate during the entire poll period
should be disclosed by the candidate and submitted along with the
account registers maintained by the candidate.
37. Further, the specific case of the election petitioner is
that the Returning Officer ought to have rejected the nomination
paper of the applicant under Section 36(2) of the said Act, as the
applicant withheld important informations, including his non-
agricultural land and contract details entered by the private
company in which the applicant has shares. Thus, the election
petitioner says that furnishing false informations amounts to defects
of substantive character in filing the nomination.
38. It is settled that 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
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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.
39. In Harishankar Jain v. Sonia Gandhi, (2001) 8 SCC
233, the Hon'ble Supreme Court held that the expression "cause of
action" would mean facts to be proved, if traversed, in order to
support his right to the Judgment of the Court and that the function
of the party is to present a full picture of the cause of action with
such further information so as to make opposite party understand
the case he will have to meet. In paragraph 23, the Hon'ble
Supreme Court held as under:
"23. Section 83(1)(a) of RPA, 1951
mandates that an election petition shall
contain a concise statement of the material
facts on which the petitioner relies. By a
series of decisions of this Court, it is well
settled that the material facts required to be
stated are those facts which can be
considered as materials supporting the
allegations made. In other words, they must
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be such facts as would afford a basis for the
allegations made in the petition and would
constitute the cause of action as understood
in the Code of Civil Procedure, 1908. The
expression "cause of action" has been
compendiously defined to mean every fact
which it would be necessary for the plaintiff
to prove, if traversed, in order to support his
right to the judgment of court. Omission of a
single material fact leads to an incomplete
cause of action and the statement of claim
becomes bad. The function of the party 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. (See Samant
N. Balkrishna v. George Fernandez,
Jitendra Bahadur Singh v. Krishna Behari.)
Merely quoting the words of the section like
chanting of a mantra does not amount to
stating material facts. Material facts would
include positive statement of facts as also
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positive averment of a negative fact, if
necessary. In V.S. Achuthanandan v. P.J.
Francis this Court has held, on a conspectus
of a series of decisions of this Court, that
material facts are such preliminary facts
which must be proved at the trial by a party
to establish existence of a cause of action.
Failure to plead "material facts" is fatal to the
election petition and no amendment of the
pleadings is permissible to introduce such
material facts after the time-limit prescribed
for filing the election petition.
24. It is the duty of the court to examine the
petition irrespective of any written statement
or denial and reject the petition if it does not
disclose a cause of action. To enable a court
to reject a plaint on the ground that it does
not disclose a cause of action, it should look
at the plaint and nothing else. Courts have
always frowned upon vague pleadings
which leave a wide scope to adduce any
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evidence. No amount of evidence can cure
basic defect in the pleadings."
(Underlying added)
40. In Mayar (H.K.) Ltd. and others v. Owners and Parties,
Vessel M.V. Fortune Express and others, (2006) 6 SCC 100, the
Hon'ble Supreme Court held as under :-
"12. From the aforesaid, it is apparent that the
plaint cannot be rejected on the basis of the
allegations made by the defendant in his
written statement or in an application for
rejection of the plaint. 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 VII
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
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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, mere fact that in the opinion of the
Judge the plaintiff may not succeed cannot be
a ground for rejection of the plaint. In the
present case, the averments made in the
plaint, as has been noticed by us, do disclose
the cause of action and, therefore, the High
Court has rightly said that the powers under
Order VII Rule 11 of the Code cannot be
exercised for rejection of the suit filed by the
plaintiff-appellants. Similarly, the Court could
not have taken the aid of Section 10 of the
Code for stay of the suit as there is no
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previously instituted suit pending in a
competent court between the parties raising
directly and substantially the same issues as
raised in the present suit."
41. In construing a plea in any pleading, Courts must keep
in mind that a plea is not an expression of art and science but an
expression through words to place fact and law of one's case for a
relief. Such an expression may be pointed, precise, sometimes
vague but still it could be gathered what he wants to convey through
only by reading the whole pleading, depending on the person
drafting a plea.
42. When this Court carefully gone through the decisions
cited supra, it is clear that the Courts need to be cautious in dealing
with requests for dismissal of the petitions at the threshold and
exercise their powers of dismissal only in cases where even on a
plain reading of the petition no cause of action is disclosed.
43. An election which is vitiated by reason of corrupt
practices, illegalities and irregularities enumerated in Sections 100
and 123 of the said Act cannot obviously be recognized and
respected as the decision of the majority of the electorate. The
Courts are, therefore, duty bound to examine the allegations
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whenever the same are raised within the framework of the statute
without being unduly hyper technical in their approach and without
being oblivious of the ground realities.
44. The result of the election can be questioned on the
grounds enumerated in Section 100 of the said Act. Section
100(1)(b) and 100(1)(d)(i), (ii) and (iv) of the said Act, provides :
"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) ........
(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) ........
(d) that the result of the election, in so far as it
concerns a returned candidate, has been
materially affected-
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(i) by the improper acceptance or any
nomination, or
(ii) by any corrupt practice committed in the
interests of the returned candidate by an
agent other than his election agent, or
(iii) ........
(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."
45. Admittedly, the election petition must set out the
material facts on the basis of which the charge can be made and in
the event of the material facts not being stated in the petition, the
same is liable to be dismissed. The expression material facts would
mean all the basic facts constituting the ingredients of the particular
corrupt practice which the election petitioner is bound to
substantiate before he can succeed on that charge.
46. Whether in a election petition, a particular fact is
material or not, and as such required to be pleaded is a question
which depends on the nature of the charge leveled, the ground
relied upon and the special circumstances of the case. All those
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facts which are essential to clothe the election petitioner with a
complete cause of action are material facts which must be pleaded
and failure to plead even a single material fact amounts to
disobedience of the mandate of Section 83(1)(a) of the said Act.
47. The object and purpose of pleading material facts is to
enable the opposite party to know the case he has to meet and in
the absence of such a pleading, a party cannot be allowed to lead
evidence. The requirement under Section 83(1)(a) of the said Act in
contradiction to Section 83(1)(b) of the Act is that the election
petition needs to contain only a concise statement of the material
facts and not material particulars. For the purpose of considering a
Preliminary objection as to the maintainability of the election
petition, the averments in the election petition should be assumed
to be true and the Court has to find out whether these averments
disclose a Cause of action or a triable issue as such. However, the
Court cannot dissect the pleadings into several parts and consider
whether each one of them discloses a cause of action.
48. As stated supra, the election petitioner assails the
election of the applicant under Section 100(1)(b) and 100(1)(d)(i),
(ii) and (iv) of the said Act. After going through the averments made
in the election petition as a whole, it cannot be said that the election
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petition does not contain a concise statement of material facts. In
fact, prima facie, it does disclose a cause of action. The argument
of the learned counsel for the applicant that the election petition has
no cause of action has no merit. As stated supra, this Court is of the
view that the election petition having disclosed a cause of action, it
should not have been thrown out at the threshold. That apart, when
allegation of corrupt practice alleged in the election petition, the
Court is duty bound to examine the said allegation.
49. It is fairly well settled that our election law being
statutory in character must be strictly complied with since an
election petition is not guided by ever changing common law
principles of justice and notions of equity. Being statutory in
character it is essential that it must conform to the requirements of
our election law. But at the same time the purity of election process
must be maintained at all costs and those who violate the statutory
norms must suffer for such violation. If the returned candidate is
shown to have secured his success at the election by corrupt means
he must suffer for his misdeeds.
50. At this stage, this Court is not considering the issues
whether the applicant filed false affidavit at the time of filing his
nomination and failed to disclose the true and correct expenditures
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incurred by him in the entire election, thereby violated the provisions
of Section 100(1)(d)(ii) of the said Act and also whether the
Returning Officer has correctly or wrongly accepted the nomination
of the applicant and there was violation of Section 33 of the said Act
or not and these are all matter of trial. Thus, this Court is of the view
that there had been substantial compliance with the provisions of
Section 83(1)(a) of the said Act. Moreover, the Question as to
whether the pleadings made by the election petitioner in the election
petition are sufficient or not can only be determined at the time of
final hearing of the election petition. Since the election petition
discloses cause of action and the election petition needs to be tried,
the instant application is devoid of any merit and the same is liable
to be dismissed.
51. For the foregoing discussions, MC (EP) No.25 of 2020
in Election Petition No.1 of 2019 is dismissed. No costs.
52. Registry is directed to issue copy of this order to both
the parties.
JUDGE
Yumk Digitally
signed by
ham Yumkham FR/NFR
Rother
Rothe Date:
2021.03.25 Sushil
r 16:47:42
+05'30'
MC(E.P.) No. 25 of 2020
Ref:-El.Petn. No. 1 of 2019
