Manipur High Court
& Ps Andro vs Leikai on 13 October, 2023
1
JOHN TELEN Digitally signed by JOHN TELEN
KOM
KOM Date: 2023.10.13 16:37:52
+05'30'
IN THE HIGH COURT OF MANIPUR
AT IMPHAL
MC(El.Pet.)No.172 of 2022
Ref: El.Pet.No.14 of 2022
Shri. Thounaojam Shyamkumar, aged about 51 years old, S/o (L)
Thounaojam Binoykumar, a permanent residence of Angtha, PO Yairipok
& PS Andro, Imphal East District, Manipur-795149.
...Applicant
- Versus -
Shri Lourembam Sanjoy Singh, aged about 40 years old, S/o Shri
Lourembam Shyamjai Singh, a permanent residence of Yambem Mathak
Leikai, PO Yairipok & PS Andro, Imphal East District, Manipur-795149.
.... Respondent
With
MC(El.Petn.)No.173 of 2022
Ref: El.Petn.No.25 of 2022
Shri. Thounaojam Shyamkumar, aged about 51 years old, S/o (L)
Thounaojam Binoykumar, a permanent residence of Angtha, PO Yairipok
& PS Andro, Imphal East District, Manipur-795149.
...Applicant
- Versus -
2
Lourembam Sanjit Singh, aged about 38 years old, S/o Shri Lourembam
Shyamjai Singh, a permanent residence of Yambem Mathak Leikai, PO
Yairipok & PS Andro, Imphal East District, Manipur-795149
.
.... Respondent
BEFORE
HON'BLE THE ACTING CHIEF JUSTICE MR. M.V. MURALIDARAN
For the applicants : Mr. M. Gunedhor. Adv.
For the Respondents : Mr. H.S Paonam, Sr. Adv, Mr. BR
Sharma, Adv.
Date of hearing & reserved. : 25.09.2023
Date of Judgment & Order : 13.10.2023.
JUDGMENT & ORDER
(CAV)
[1] These petitions have been filed by the petitioner under Order 7,
Rule 11 of the Code of Civil Procedure, 1908 to reject Election Petition Nos.14
and 25 of 2022.
[2] The petitioner herein is the first respondent in both the election
petitions. The respondent in MC (El.P) No.173 of 2022 has filed Election
Petition No.14 of 2022. The respondent in MC (El.P) No.172 of 2022 has filed
Election Petition No.25 of 2022.
[3] The prayer in Election Petition No.14 of 2022 reads thus:
"a. to declare that the election of the Respondent No.1
the returned Candidate of 7-Andro Assembly
Constituency to the 12th Manipur Legislative Assembly
Election, 2022 is null and void.
b. to declare that the petitioner as the duly elected
Member in the 12th Manipur Legislative Assembly
Election, 2022 from 7-Andro Assembly Constituency.
[4] The prayer in Election Petition No.25 of 2022 read thus:
"a. to declare that the election of the Respondent No.1
the returned Candidate of 7-Andro Assembly
Constituency to the 12th Manipur Legislative Assembly
Election, 2022 is null and void.
b. to declare that respondent No.2 as the duly elected
Member in the 12th Manipur Legislative Assembly
Election, 2022 from 7-Andro Assembly Constituency.
[5] The challenge made in the election petitions relates to 7-Andro
(Gen) Assembly Constituency for 12th Manipur General Legislative Assembly
Election held on 28.2.2022. The election petitioner in Election Petition No.25
is the younger brother of the election petitioner in Election Petition No.14 of
2022.
[6] For the sake of convenience, the parties are referred to as per
their array in Election Petition No.25 of 2022.
[7] The first respondent has filed these petitions to reject the election
petitions on the grounds that the election petitioner and the second respondent
have failed to mention material facts which would constitute cause of action for
filing the election petitions; the allegation made against the first respondent
does not constitute any corrupt practice; the election petitions have not
disclosed the source of information upon which the allegations have been
levelled in the election petitions; no pleading as to the knowledge of the first
respondent being arrayed as an accused in the FIR 284(10)04; non-filing of the
objection before the returning officer amounts to waiver of their rights and non-
compliance of Section 83 of the Representation of People Act, 1951 (for brevity,
"the RP Act"].
[8] Denying the averments made in these petitions, the election
petitioner and the second respondent have filed affidavit-in-oppositions stating
that there is enough material facts and material particulars pleaded in the
election petitions, which would materially affect the election of the first
respondent. It is stated that the first respondent intentionally has failed to
disclose the non-agricultural land recorded in the name of his spouse where
four floor pucca residential building has been constructed. The first respondent
does not clearly understand that the disclosure of agricultural land recorded in
the name of the spouse of the first respondent as residential building which is
against the relevant law as also swearing a false affidavit and, as such, the
same can be termed as undue influence having been done on the voters
thereby materially affecting the result of the election. It is stated that the expired
voters' votes have been casted thereby violating the free and fair election which
is a basic structure of the Constitution of India. As such, the election of the first
respondent is liable to the declared as void and the second respondent may be
declared as returned candidate.
[9] Mr. M. Gunedhor, the learned counsel for the first respondent
submitted that the election petitions are liable to be rejected under Order 7,
Rule 11(a) CPC. The first respondent, who is the returned candidate, has got
1220 more votes than the second respondent, who is the brother of the election
petitioner in Election Petition No.25 of 2022.
[10] The learned counsel for the first respondent would submit that the
election petitions are deficient in pleadings to make out any cause of action and
miserably failed to substantiate as to how the result of the election of the first
respondent has been materially affected. Therefore, the continuance of the
proceedings of the election petitions is not only an abuse of the process of the
Court, but is an anathema to the concept of fair trial. The first respondent was
not arrayed as an accused in the FIRNo.284(10)04.
[11] According to the learned counsel, the election petitions have been
filed upon the grounds of commission of corrupt practice and improper
acceptance of nomination paper as stipulated under Section 123 and Sections
100 and 101 of the RP Act. The election petitions lack in material fact
constituting the cause of action required under the provisions of the RP Act and
that the election petitions do not fulfill the mandatory requirement of law. The
election petitions do not contain concise statement of material facts on which
the election petitioner and the second respondent rely on and, therefore, do not
disclose a triable issue or cause of action.
[12] According to the learned counsel, the election petitions suffer from
non-compliance of the provisions contained in Section 83(1)(b) of the RP Act
and that the election petitions are completely vague. No trial or enquiry is
permissible on the basis of such vague averments. According to the learned
counsel, mere pendency of criminal case is no bar to contest and being elected.
In the case on hand, two criminal cases are pending against him. Disclosing
the particulars of the said FIR in which he was not even arrayed as an accused
could not have impacted his entitlement to contest and be elected. There is
no averments of particulars, including the date, time, place and the manner and
method by which the election petition had informed the returning officer about
the alleged FIR against the first respondent.
[13] The learned counsel further submitted that the first respondent
has disclosed the property/land in Clause 7B(iv) of the residential buildings
column of Form-26 affidavit. If the first respondent failed to mention his non-
agricultural land properly in the column meant for non-agricultural land and
instead he has mentioned the said land in the column meant for residential
buildings, it would not lead to the inference that the first respondent has
suppressed material information to mislead the voters to take a decision. In
fact, the first respondent has mentioned his spouse agricultural land properly in
the column.
[14] The learned counsel urged that the second respondent has failed
to produce any material to show who had impersonated the expired voters and
also who facilitated those impersonators to get the names of those expired
persons in the voters list and to cast their votes. There is no specific allegations
that either the first respondent or his election agent or any of the Government
officials who were in charge of Polling Station Nos.7/11, 7/12, 7/13, 7/17, 7/18,
7/19, 7/41, 7/42, 7/43 and 7/44 has prevented any person from going to the
polling booths or from casting votes. Even where the entire votes of the alleged
disputed polling stations, where the voting of expired amounting to 59 are
excluded, the first respondent will still have a majority of 1339 votes over the
second respondent. There is no allegation that there was any attempt from
anybody on the polling authorities to surrender ballot papers or voting
machines.
[15] The learned counsel urged that on the date of scrutiny of the
nomination, nobody has raised voice against the poll process and conduct of
polls. The allegations of corrupt practice and improper acceptance of
nomination paper do not meet out the basic requirement, which could constitute
cause of action as required by law. The election petitions are in contravention
of Section 83 of the RP Act. Thus, a prayer has been made to reject the election
petitions. In support of the submissions, the learned counsel for the first
respondent placed reliance upon the decision of the Apex Court in the case of
Krishnamoorthy v. Sivakumar and others, (2015) 3 SCC 467.
[16] Per contra, Mr. HS Paonam, the learned senior counsel for the
election petitioner and the second respondent submitted that M.C.(El. Pet.)
Nos.172 and 173 of 2022are filed without any basis and that there is a cause
of action for filing the election petitions. The material facts, which constitute the
cause of action for filing the election petitions, have been clearly averred in the
election petitions. In fact, the election petitioner and the second respondent in
their election petitions categorically averred that the non-disclosure of
information or incomplete information while filing the nomination paper along
with Form-26 in respect of the election in question amounts to corrupt practice
under Section 123 of the RP Act.
[17] The learned counsel would submit that by filing a false affidavit,
non-disclosure and disclosing of half-truth information which has the potentiality
to have a cacophony that can usher in anarchy have directly or indirectly
attempt to interfere with the free exercise of electoral rights of the voters of 7-
Andro Assembly Constituency for the 12th Manipur Legislative Assembly
Constituency, 2022.
[18] The learned counsel submits that the expired voters votes have
been casted in respect of Polling Station Nos.7/11, 7/12, 7/13, 7/17, 7/18, 7/19,
7/41, 7/42, 7/43 and 7/44 of 7-Andro Assembly Constituency and the votes of
the expired voters can only be casted in proxy by some other persons for the
dead men thereby violated the free and fair election. There are enough material
facts and particulars stated in the election petitions which would materially
affect the election of the first respondent in the manner and circumstances as
narrated in the election petitions can be declared as void in terms of the
provisions of the RP Act.
[19] The learned senior counsel added that the first respondent
intentionally concealed to furnish the particulars of non-agricultural land and the
non-disclosure of the agricultural land recorded in the name of the spouse of
the first respondent in the relevant column shatter the free exercise of choice
and selection. That apart, the voters' fundamental right to know the particulars
also gets nullified. Similarly, the first respondent has failed to disclose the
particulars of the criminal case in FIR No.284(10)04 pending against him. In
fact, all the materials particulars about the non-disclosure and how the same
has affected the voters have been clearly mentioned by the election petitioner
and the second respondent in their respective election petitions. Further, all
the provisions of the RP Act have been complied with while filing the election
petitions and that the election petitions are not ill-conceived as alleged by the
first respondent. Thus, a prayer has been made to dismiss the petitions. In
support, the learned senior counsel for the election petitioner and the second
respondent rely upon the following decisions:
(i) D.Ramachandran v. R.V.Janakiraman, (1999) 3 SCC
(ii) P.V.Guru Raj Reddy v. P.Neeradha Reddy, (2015) 8
SCC 331
(iii) Srihari Numandas Totala v. Hemant Vithal Kamat,
(2021) 9 SCC 99
(iv) R.K.Imosingh v. Dr.Khawairakpam Loken Singh, 2017
SCC OnLine Mani 127.
(v) Order dated 4.1.2018 passed in MC (EP) No.6 of 2017
(Th. Shyamkumar v. Dr. Nimaichand Liwang).
(vi) Order dated 23.5.2023 passed in MC (EP) No.25/22
(Lorho S.Pfoze v. Houlim Shokhopao Mate @
Benjamin)
(vii) Oder dated 5.7.2023 passed in MC (EP) No.66 of 2022
(Kimneo Haokip Hangshing v. Kenn Raikhan and
others)
(viii) Order dated 12.9.2023 passed in MC (EP) No.7 of 2023
(Sorokhaibam Rajen Singh v. Pukhrambam Sumati
Devi)
[20] This Court considered the rival submissions and also perused the
materials available on record.
[21] The prayer of the first respondent is that the election petitions are
liable to be rejected on the ground that the same do not disclose the cause of
action in terms of the provisions of the CPC as well as the provisions of the RP
Act.
[22] On the other hand, the election petitioner and the second
respondent contend that the cause of action for filing the election petitions have
been substantially disclosed in the election petitions and they have
categorically stated that non-disclosure of information or incorrect information
while filing the nomination paper along with Form-26 affidavit amounts to
corrupt practice under Section 123 of the RP Act as held by the Hon'ble
Supreme Court in a catena of judgments.
[23] The first respondent has filed M.C.(El. Petn.) Nos.172 and 173 of
2022 under Order 7, Rule 11(a) of CPC praying for rejection of the Election
Petition Nos.25 and 14 of 2022. The election petitioner and the second
respondent assail the election of the first respondent from7-Andro (Gen)
Assembly Constituency for the 12th Manipur Legislative Assembly Elections,
2022 on the grounds of (i) false statements and concealment of material
information in respect of criminal cases, particularly, FIR No.284(10)/04 under
Sections 12/121-A/124-A/120B IPC, Section 5 of Exp. Sub. Act and under
Section 10/13 of UA(P) Act pending against the first respondent in Form-26
submitted along with the nomination papers as candidate in the 12 th Manipur
Legislative Assembly and (ii) non-disclosure of the agricultural land recorded in
the name of his spouse but instead it was disclosed as residential building with
four floor pucca structure in Part A Para 7(B)(iv and failure to disclose a non-
agricultural land which is recorded in his name in Part A Para B-(ii); (iii) booth
capturing in Polling Station Nos.7/11, 7/12, 7/13, 7/41, 7/42, 7/43 and 7/44
amounting to corrupt practice.
[24] According to the election petitioner and the second respondent,
the improper acceptance of the nomination by the returning officer and the non-
compliance of the provisions of applicable laws by the first respondent at the
time of filing of nomination, the election of the first respondent from 7-Andro
(Gen) Legislative Assembly Constituency is to be declared as void.
25. Resisting the election petitions, the first respondent has filed written
statement, inter alia, stating that the material facts pleaded in the election
petition are frivolous, concocted, a jealous petition and a petition of unclean
hand and only mentioning the word materially affected is not sufficient but also
the extent and manner of the effect should also be pleaded. Wild allegations
have been made by the election petitioner and the second respondent that
casting of votes will be well substantiated by Form 17A. Such wild allegation
without any basis is to make a roving and fishing enquiry of the sacrosanct
process of election by indulging in a wild goose chase and shall not be allowed.
The first respondent has not indulged any corrupt practice and booth capturing
as alleged. Election Petition No.14 of 2022 has been filed on a wrong premises
and no cause of action arose to file the said election petition. It is stated that
the agricultural land as well as the non-agricultural land which are in question
in the election petition have been disclosed in Form 26 affidavit with their area
and total valuations. The building structure are standing on the plot of lands
and the usage of residential purposes were also disclosed in the relevant para
where residential buildings are to be disclosed. The disclosure of such property
in the relevant para of residential building cannot be termed as filing of false
affidavit. The first respondent filed the nomination paper with Form 26 as
prescribed by law as well as by the orders and guidelines of the Election
Commission of India. The election petitioner and the second respondent cannot
establish or make out any illegality or impropriety in the nomination paper filed
in connection with the election of 2022, nor there is non-disclosure of
information relating to source of income and assets of the first respondent or
his dependents or spouse. The election petitioner cannot allege any allegation
over improper acceptance of nomination of the first respondent as a ground in
the election petition as the same happened prior to the declaration of the result
of election on 10.3.2022.
[26] The learned counsel for the first respondent 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 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; that all material facts, therefore, in
accordance with the provisions of the RP Act have to be set out in the election
petition. If the material facts are not stated in the election petition, it is liable to
be dismissed on that ground, as the case would be covered by Section 83(1)(a)
(b) of the RP Act read with Order 7, 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.
[27] Placing reliance upon the decision in the case of Krishnamurthy,
supra, the learned counsel for the first respondent submitted that Section 33(1)
of the RP Act envisages that information has to be given in accordance with the
Rules. This is in addition to the information to be provided as per Sections
33(1)(i) and (ii) of the RP Act. The affidavit that is required to be filed by the
candidate stipulates mentioning of cases pending against the candidate in
which charges have been framed by the Court for the offences punishable with
imprisonment for two years or more and also the cases which are pending
against him in which cognizance has been taken by the Court other than the
cases which have been mentioned in clause (5)(i) of Form 26. According to
learned counsel, Section 33A only requires the candidates to furnish
information regarding cases where charges have been framed or he has been
convicted for any offence and sentenced to imprisonment for one year or more
and does not contemplate any information regarding the criminal case pending
investigation. In fact, the election petitioner has failed to disclose the date on
which the Court had taken cognizance of the offence said to have been made
against the first respondent and that certain charges have been framed based
on the said FIR. Further, the learned counsel submitted that failure to plead
material facts in the election petitions, the election petitions are liable to be
rejected for want of cause of action and the facts constituting the cause of action
have not been specifically pleaded in the election petitions. Therefore, the
Court, invoking power under Order 7, Rule 11 CPC, reject the election petitions.
[28] In Krishnamurthy, supra, the Hon'ble Supreme Court held:
"75. On a perusal of the aforesaid format, it is clear as crystal that
the details of certain categories of the offences in respect of which
cognizance has been taken or charges have been framed must be
given/furnished. This Rule is in consonance with Section 33-A of
the 1951 Act. Section 33(1) is in addition to the information to be
provided as per Sections 33(1)(i) and (ii). The affidavit that is
required to be filed by the candidate stipulates mentioning of cases
pending against the candidate in which charges have been framed
by the Court for the offences punishable with imprisonment for two
years or more and also the cases which are pending against him
in which cognizance has been taken by the court other than the
cases which have been mentioned in clause (5)(i) of Form 26.
Apart from the aforesaid, clause (6) of Form 26 deals with
conviction."
[29] The specific case of the election petitioner is that on 7.10.2004,
an FIR, being FIR No.284(10)04,was lodged before Imphal Police Station under
Section 121/121-A/400/124-A/120B IPC 5-Exp. Sub. Act, 10/13 UA(P) Act
against more than fourteen accused alleging crime committed during the month
of October, 2004. The first respondent was arrested by the Special Cell, New
Delhi on the allegation of being UNLF outfits along with two others. Thereafter,
the prosecution prayed for issuing production warrant of the accused before the
Magistrate, Imphal West with reference to the FIR No.284(10)04 and
subsequently released on bail. Further, FIR No.284(10)04 is still under
investigation and such pendency of the FIR case has not been disclosed by the
first respondent in his Form-26 affidavit.
[30] On the other hand, it is the plea of the first respondent that only
the cases where charges have been framed or has been convicted is required
to be furnished in the affidavit in Form 26 and Section 33 of the RP Act does
not contemplate any information qua the criminal case pending investigation.
[31] Similarly, the argument of the second respondent is that the first
respondent has failed to disclose an agricultural land recorded in the name of
his spouse, however, the same was disclosed as residential building in Para A
Para (7)(B)(iv). Further, the non-agricultural land recorded in the name of the
first respondent was not disclosed in Part A Para B (ii), however, the same was
disclosed in Part A Para 7(B)(iv). There was also booth capturing thereby
forcefully allowing the supports of the first respondent to cast votes in multiple
numbers which included the votes of expired persons, which amounts to corrupt
practice.
[32] The first respondent denied the aforesaid arguments and
submitted that there was no booth capturing as alleged by the second
respondent and that the first respondent has given detailed information about
the said two lands as per the requirements in Form-26 affidavit. If the first
respondent failed to mention his non-agricultural land properly in the column
meant for non-agricultural land and instead he has mentioned the said land in
column meant for residential buildings, it would not lead to the inference that
the first respondent has suppressed the material information to mislead the
voters to take a decision.
[33] Considering the arguments canvassed by learned counsel for the
first respondent and the election petitioner, this Court is of the view that cases
which have been taken cognizance have to be furnished in Form-26 by the
candidate. Whether the FIR No.284(10)04 said to have been registered
against the first respondent has been deliberately omitted to be furnished in
Form-26 or not has to be decided during trial and, at this stage, this Court
cannot come to a conclusion that since the investigation is pending, it is not
necessary to mention in Form-26 affidavit. Similarly, whether or not the first
respondent failed to properly mention his non-agricultural land and the
agricultural land in the relevant columns is to be decided only after trial. At this
stage, this Court cannot consider the said aspect without oral and documentary
evidence.
[34] It is to be noted that the right to get information in democracy is
recognized all throughout and it is natural right flowing from the concept of
democracy. Article 19(1) and (2) of the International Covenant of Civil and
Political Rights states as under:
"(1) Everyone shall have the right to hold opinions without
interference.
(2) Everyone shall have the right to freedom of expression; this
right shall include freedom to seek, receive and impart information
and ideas of all kinds, regardless of frontiers, either orally, in
writing or in print, in the form of art, or through any other media of
his choice."
[35] Article 19(1)(a) of the Constitution of India provides for freedom of
speech and expression. Voters' speech or expression in case of election would
include casting of votes, that is to say, voter speaks out or expresses by casting
vote. For this purpose, information about the candidate to be selected is must.
Voter's right to know antecedents including criminal past of his candidate
contesting election for MP or MLA is much more fundamental and basic for
survival of democracy. The voter may think over before making his choice of
electing law breakers as law makers.
[36] In D.Ramachandran, supra, Hon'ble Supreme Court held:
"8. We do not consider it necessary to refer in detail to any part
of the reasoning in the judgment; instead, we proceed to consider
the arguments advanced before us on the basis of the pleadings
contained in the election petition. It is well settled that in all cases
of preliminary objection, the test is to see whether any of the
reliefs prayed for could be granted to the appellant if the
averments made in the petition are proved to be true. For the
purpose of considering a preliminary objection, the averments in
the petition should be assumed to be true and the court has to
find out whether those averments disclose a cause of action or a
triable issue as such. The court cannot probe into the facts on
the basis of the controversy raised in the counter.
........
10. On the other hand, Rule 11 of Order 7 enjoins the court to
reject the plaint where it does not disclose a cause of action.
There is no question of striking out any portion of the pleading
under this Rule. The application filed by the first respondent in
OA No.36 of 1997 is on the footing that the averments in the
election petition did not contain the material facts giving rise to a
triable issue or disclosing a cause of action. Laying stress upon
the provisions of Order 7 Rule 11(a), learned Senior Counsel for
the first respondent took us through the entire election petition
and submitted that the averments therein do not disclose a cause
of action. On a reading of the petition, we do not find it possible
to agree with him. The election petition as such does disclose a
cause of action which if unrebutted could void the election and
the provisions of Order 7 Rule 11(a) CPC cannot therefore be
invoked in this case. There is no merit in the contention that
some of the allegations are bereft of material facts and as such
do not disclose a cause of action. It is elementary that under
Order 7 Rule 11(a) CPC, the court cannot dissect the pleading
into several parts and consider whether each one of them
discloses a cause of action. Under the Rule, there cannot be a
partial rejection of the plaint or petition. See RoopLalSathi v.
Nachhattar Singh Gill, (1982) 3 SCC 487. We are satisfied that
the election petition in this case could not have been rejected in
limine without a trial."
[37] In P.V. Guru Raj Reddy, supra, the Hon'ble Supreme Court held
that rejection of the plaint under Order 7, Rule 11 CPC is a drastic power
conferred in the Court to terminate a civil action at the threshold. The conditions
precedent to the exercise of power under Order 7, Rule 11, therefore, are
stringent and have been consistently held to be so by the court. It is the
averments in the plaint that have to be read as a whole to find out whether it
discloses a cause of action or whether the suit is barred under any law. At the
stage of exercise of power under Order 7, Rule 11, the stand of the defendants
in the written statement or in the application for rejection of the plaint is wholly
immaterial. It is only if the averments in the plaint ex facie do not disclose a
cause of action or on a reading thereof the suit appears to be barred under any
law the plaint can be rejected. In all other situations, the claims will have to be
adjudicated in the course of the trial.
[38] In Srihari Hanumandas Totala, supra, the Hon'be Supreme Court
observed that an application under Order 7, Rule 11 must be decided within the
four corners of the plaint. The trial Court and the High Court were correct in
rejecting the application under Order 7, Rule 11(d).
[39] In Rajkumar Imo Singh, supra, 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 disclosing a cause of action. So long as the petition discloses some
cause of action or raises some questions fit to be decided by the Court, the
mere fact that the case is weak and not likely to succeed, is no ground for
dismissing it. Therefore, the trial can continue on merits and it is a different
matter if the material facts as stated in the petition, are not sufficient to prove
the allegations. Whether or not the election petitioner is able to prove the
allegations is a matter of evidence which can be considered only at the stage
of trial.
[40] In Ponnala Lakshmaiah v. Kommuri Pratap Reddy and others,
(2012) 7 SCC 788, the Hon'ble Supreme Court held 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
RP Act, 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
Code of Civil Procedure or elsewhere and is more easily understood than
precisely defined.
[41] In Kisan Shankar Kathore v. Arun Dattatray Sawant and others,
(2014) 14 SCC 162, 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.
[42] In Ashraf Kokkur v. K.V.Abdul Khader, (2015) 1 SCC 129, the
Hon'ble Supreme Court held that the election petition having disclosed a cause
of action should not have been thrown out at the threshold.
[43] In Kuldeep Singh Pathania v. Bikram Singh Jaryal, (2017) 5 SCC
345, the Hon'ble Supreme Court has considered the preliminary issues
relatable to Order 7, Rule 11 CPC in the sense those issues pertain to the
rejection at the institution stage for lack of material facts and for not disclosing
a cause of action. The Hon'ble Supreme Court held that merely because it is
a trial on preliminary issues at the stage of Order 14, the scope does not change
or expand. The stage at which such an enquiry is undertaken by the Court
makes no difference since an enquiry under Order 7, Rule 11(a) CPC can be
taken up at any stage. After consideration of the materials produced, the
Hon'ble Supreme Court came to the conclusion that the election petition has
disclosed cause of action and remitted the matter for fresh enquiry.
[44] Whether the allegation of the election petitioner and the second
respondent are correct or not has to be proved by the election petitioner and
the second respondent respectively and further, as to whether, incorrect
particulars have been mentioned in the affidavit in Form-26 by the first
respondent/returned candidate and whether the alleged false affidavit would
amount to violation of the provisions of Section 33 of the RP Act so as to render
the election of the first respondent void are to be considered by the Court in the
course of trial.
[45] The learned counsel for the election petitioner has referred to a
number of decisions related to cause of action. This Court does not wish to
add to the number of judicial pronouncements relied upon by the learned
counsel. Suffice to say that cause of action means every fact which, if
traversed, it would be necessary for the election petitioner to prove in order to
support his right to a judgment of the Court.
[46] On a thorough reading of the election petitions, it cannot be said
that the election petitions do not contain a concise statement of material facts.
In fact, the election petitions disclose cause of action. Whether or not the
election petitioner and the second respondents are able to prove the allegations
sets out in the election petitions and similarly disprove the allegations by the
first respondent is a matter of evidence which can be considered only at the
time of trial.
[47] At this stage, the first respondent is not able to produce any
material to substantiate his case that the election petitions do not disclose the
cause of action. The first respondent simply stated that the election petitioner
and the second respondent have failed to disclose the cause of action to
maintain the election petitions in terms of the provisions of the RP Act and the
CPC and nothing more.
[48] When this Court read over the averments sets out in the election
petitions wholly, it is clear that the election petitioner and the second respondent
have stated full and material particulars following the cause of action for filing
the election petitions. Prima facie, the election petitioner and the second
respondent have narrated in the election petitions qua the non-disclosure of
certain information and/or incomplete information while filing the nomination
paper along with Form-26 affidavit by the first respondent.
[49] 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.
[50] 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.
[51] 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 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
previously instituted suit pending in a competent court between the
parties raising directly and substantially the same issues as raised
in the present suit."
[52] In construing a plea in any pleading, the 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.
[53] When this Court carefully examined the decisions in the cases of
Harishankar Jain and Mayar (H.K.) Ltd, supra, it is clear that the Courts need
to be cautious in dealing with the request for dismissal of the election petition
at the threshold and exercise their powers of dismissal only in cases where
even on a plain reading of the election petition no cause of action is disclosed.
In the case on hand, the election petitions establish the cause of action.
[54] An election which is vitiated by reason of corrupt practices,
illegalities and irregularities enumerated in Sections 100 and 123 of the RP 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 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.
[55] The result of the election can be questioned on the grounds
enumerated in Section 100 of the Representation of People Act. Section
100(1)(b) and 100(1)(d)(i), (ii), (iii) and (iv) of the RP 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--
(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) by the improper reception, refusal or rejection of any vote
or the reception of any vote which is void, or
(iv) by any non--compliance with the provisions of the
Constitution or of this Act or of any rules or orders made under
this Act."
[56] As stated supra, 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 election petition, the same is liable to be
dismissed.
[57] Whether in 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 facts which are essential to clothe the election petition 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 RP Act.
[58] 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 RP Act in contradiction to Section 83(1)(b) of the RP 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.
[59] As stated supra, the election petitioner assails the election of the
first respondent under Sections 77, 80, 80-A, 81, 84, 100(1)(d)(i), (iii)& 101 of
the RP Act. After going through the averments made in the election petitions
as a whole, it cannot be said that the election petitions do not contain a concise
statement of material facts. In fact, prima facie, the election petitions disclose
the cause of action.
[60] It is trite that the cause of action is a bundle of facts which is taken
with law gives the election petitioner a right to relief against the returned
candidate. Every fact and bundle of facts together constitutes a question of
facts which are required to be proved for the relief.
[61] It is well settled law 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.
[62] It is reiterated that the present election petitions as such to
disclose the cause of action which if unrebutted could void the election and the
provisions of Order 7, Rule 11 CPC cannot therefore be invoked in the present
cases. There is no substance in the contention that some of the allegations are
bereft of material facts and, as such, do not disclose a cause of action. It is
elementary that under Order 7, Rule 11(a) CPC, the Court cannot dissect the
pleading into several parts and consider whether each of them discloses a
cause of action.
[63] At this stage, this Court is not considering the issues - whether the
first respondent has filed false affidavit at the time of filing his nomination and
has failed to disclose true and correct facts, thereby violated the provisions of
the RP Act and whether the returning officer has correctly or wrongly accepted
the nomination of the first respondent and there was violation of Section 33 of
the RP Act or not. These are all the matter of trial. Thus, this Court is of the
considered view that there had been substantial compliance with the provisions
of Section 83(1)(a) (b) of the RP Act. Moreover, the question as to whether the
pleadings made by the election petitioner and the second respondent in the
election petitions are sufficient or not can only be determined at the time of final
hearing of the election petitions. The election petitions disclose cause of action
and are to be tried. In view of the above, the present petitions are devoid of
merits and, therefore, the same are liable to be dismissed.
[64] In the result, MC (El. Pet.) No.172 of 2022 in Election Petition
No.25 of 2022 and MC (El. Pet.) No.173 of 2022 in Election Petition No.14 of
2022 are dismissed. There will be no order as to costs.
ACTING CHIEF JUSTICE
FR/NFR
John Kom
