Orissa High Court
Manoj Kumar Panda ... Election vs K.Anil Kumar on 21 February, 2025
Author: Sashikanta Mishra
Bench: Sashikanta Mishra
IN THE HIGH COURT OF ORISSA AT CUTTACK
I.A. No.161 of 2024
(ELPET No.19 of 2024)
(An application under Section 86 of the Representation of
People Act, 1951 read with Order VI Rule 16, Order-VII Rule
11 and Section 151 of C.P.C., 1908)
Manoj Kumar Panda ... Election Petitioner
-versus-
K.Anil Kumar
... Respondent
Advocates appeared in the case through hybrid mode:
For Petitioner : Mr.D.P.Nanda,
Sr. Advocate
Mr. S. Srivastava,
Advocate.
-versus-
For Respondent
: Mr. Samvit Mohanty
Advocate.
Mr. G.K. Agarwal,
Sr. Advocate for DEO
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CORAM:
JUSTICE SASHIKANTA MISHRA
ORDER
21.02.2025.
Sashikanta Mishra,J. This application has been filed by the sole
respondent of the above Election Petition under
Section 86 of the Representation of People Act,1951
read with Order VI, Rule 16, Order VII, Rule 11 and
Section 151 of the C.P.C. with the following prayer;
"It is therefore, prayed that this
Hon'ble Court may graciously be
pleased to pass order to struck
out/delete the pleadings made in
paragraph 8 (A) to 8(J) of the Election
Petition and/or to reject/dismiss the
Election Petition in its entirety for want
of cause of action;
And pass such order order/orders
and/or direction/directions, as would
deem fit and proper."
2. The Election Petition in question has been filed
by the Election Petitioner with prayer to declare the
election of K. Anil Kumar (sole respondent) from 130
Berhampur Assembly Constituency to the Odisha State
Legislative Assembly as void and to set aside the same
as also to direct the Election Commission of India to
hold re-election in the said constituency. Pursuant to
summons issued by this Court upon admission of the
Election Petition, the sole respondent entered
appearance and filed his written statement along with
the instant application. The Election Petition has been
filed on grounds set out in Paragraph-8 of the Petition.
3. The present I.A. has been filed basically on the
following grounds;
(i) The pleadings do not disclose all
material facts constituting a valid
cause of action resulting in non-
compliance of Section 83 (1)(a) of the
R.P. Act.
(ii) No affidavit in Form 25 has been
filed by the Election Petitioner despite
alleging corrupt practice.
(iii) The defects pointed out in the
Election Petition are not of substantial
character entailing rejection of
nomination.
4. Written objection has been filed by the Election
Petitioner basically stating that all material facts
constituting valid cause of action and triable issues
have been substantially pleaded. As regards the
procedural defects pointed out, the same are curable in
nature. Since the Election Petitioner has not alleged
any corrupt practice committed by the Respondent, the
question of filing affidavit in Form 25 does not arise.
The pleadings are based on the affidavit in Form 26
submitted by the Respondent at the time of his
nomination. Further, Section 83 of the Act does not
require filing of any document.
5. The specific grounds raised in the instant
application and the objections of the Election Petitioner
thereto shall be discussed point-wise later. It would be
apposite at the outset to refer to the relevant statutory
provisions to keep the issues in perspective.
Section 83 of the Representation of the People
Act, 1951 reads as follows;
"83.Contents of petition.
(1) An election petition-
(a) shall contain a concise statement of the material
facts on which the petitioner relies;
(b) shall set forth full particulars of any corrupt
practice that the petitioner alleges, including as full
a statement as possible of the names of the parties
alleged to have 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."
Section 87 provides that 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 to the trial of suits.
Order VI Rule 16 of C.P.C. reads as follows;
"Striking out pleadings.- The Court may at any
stage of the proceedings order to be struck out or
amended any matter in any pleading- (a) which
may be unnecessary, scandalous, frivolous or
vexatious, or (b) which may tend to prejudice,
embarrass or delay the fair trial of the suit, or (c)
which is otherwise an abuse of the process of
the Court."
Order VII Rule 11 of C.P.C. reads follows;
"11. Rejection of plaint. The plaint shall be
rejected in the following cases:-
(a) where it does not disclose a cause of action;
(b) where the relief claimed is under-valued, and
the plaintiff, on being required by the Court to so
correct the valuation within a time to be fixed by
the Court, fails to do so;
(c) where the relief claimed is properly valued,
but the plaint is written upon paper insufficiently
stamped, and the plaintiff, on being required by
the Court to supply the requisite stamp-paper
within a time to be fixed by the Court, fails to do
so; (d) where the suit appears from the statement
in the plaint to be barred by any law;
(e) where it is not filed in duplicate;
(f) where the plaintiff fails to comply with the
provisions of rule 9:
[Provided that the time fixed by the Court for the
correction of the valuation or supplying of the
requisite stamp-papers shall not be extended
unless the Court, for reasons to be recorded, is
satisfied that the plaintiff was prevented by any
cause of an exceptional nature from correcting
the valuation or supplying the requisite stamp-
papers, as the case may be, within the time fixed
by the Court and that refusal to extend such time
would cause grave injustice to the plaintiff."
6. Having referred to the relevant statutory provisions,
it would now be proper to keep in mind the settled
position of law governing the field.
It is settled law that the provision under Section 83
of the Act is mandatory in nature inasmuch as it is
obligatory for the Election Petitioner to plead all
material facts and that omission to state even a single
material fact can lead to an incomplete cause of action.
Reference may be had in this regard to the judgment of
the Supreme Court in the case of Samant N.
Balkrishna and Anr. Vs. George Fernandez and
Ors.; 1969 (3) SCC 238. In the case of Shri Udhav
Singh vs. Madhav Rao Scindia; 1977 (1) SCC 511, it
was held that all the primary facts which must be
proved by a party to establish a cause of action or his
defence are material facts. Furthermore, all facts which
constitute the ingredients of corrupt practice alleged by
the Election Petitioner must be specified. Nevertheless,
it has also been held that whether in an Election
Petition a particular fact is material or not and as such
required to be pleaded is dependent on the nature of
the charge levelled and the circumstances of the case.
7. Having kept in mind the above principles of law,
this Court shall now proceed to consider the rival
contentions put forth by the parties.
8. Heard Mr. Samvit Mohanty, learned counsel for
the Respondent and Petitioner in the I.A. and
Mr. D.P.Nanda, learned Senior counsel for the Election
Petitioner and Opp.Party in the I.A. Mr.Gopal Agarwal,
learned Senior counsel for District Election Officer.
9. Mr. Samvit Mohanty would argue that Section
83(1)(a) mandates that the Election Petition must
disclose all material facts. Further, material facts are
all necessary or basic facts which are necessary to
prove the cause of action by the Election Petitioner or
defence of the Respondent. Material facts are facts
which if established, would give the Petitioner, the
relief asked for and it depends upon the facts of each
case. Mr. Mohanty has cited the judgment of the
Supreme Court in the case of Ram Sukh vrs. Dinesh
Agarwal; AIR 2010 SC 127, in this regard. He submits
on such basis, the Election Petitioner claims that the
Respondent's nomination was improperly accepted
which is covered under Section 100(1) (d)(i) of the Act
for non-compliance relating to Section 100(1)(d)(iv). As
such, it was incumbent upon the Election Petitioner to
plead facts specifying the breach of the provision of
law, the manner of such breach and how the same has
materially affected the result of the election. He also
cites the Judgment of the Supreme Court in the case of
Karikho Kri v. Nuney Tayong & others;2024 SCC
Online SC 519 to contend that absence of any one of
the aforesaid material facts would entail dismissal of
Election Petition under Order VII, Rule 11 C.P.C. In the
instant case, according to Mr. Mohanty, not a single
averment has been made in the Election Petition as to
how the alleged improper acceptance of nomination
has materially affected the result of the election. It is
settled law that when Clause (d) (i) of sub-section (1) of
Section 100 is invoked, pleadings must show as to how
the result of the election was materially affected by
improper acceptance of the nomination form. He cites
the judgment of the Supreme Court, in this context, in
the case of Karim Uddin Barbhuiya v. Aminul
Haque Laskar; (2024) 4 SCR 523. Mr.Mohanty further
argues that mere bald and vague allegations without
any basis will not amount to sufficient compliance of
the requirement of stating material facts and that
omission to state even a single material fact would lead
to an incomplete cause of action. The decision of the
Supreme Court in the case of Kanimozhi
Karunanidhi vs. A. Santhana Kumar and others;
(2023) 4 SCR 798 and the judgment of M.P. High Court
in the case of Ram Gareb and others vs. Ajay Arjun
Singh; 2024 SCC Online MP 5332 have been relied
upon in this context.
10. Mr. Mohanty has referred to the concise
statement of material facts in the Election Petition
under Paragraphs-8(A) to 8(J). According to him, the
averments made in the said paragraphs lack material
facts and material particulars are imprecise,
unspecific, bald and lack substantial evidence.
Moreover no documents supporting the allegations
have been submitted. This, according to Mr.Mohanty,
reveals a complete absence of a valid cause of action to
maintain the Election Petition.
11. Per contra, learned Senior counsel Mr. Gopal
Agarwal has argued that the voter/citizen has right to
information under Section 33-A of the Act so as to
make an informed choice of the right to vote in the
elections. Therefore, the contesting candidates are
required to furnish the details of criminal
antecedents, assets and liabilities of self, spouse and
dependents and failure to do so would be violation of
Section 33-A as well as Article 19(1) (a) of the
Constitution of India. Mr. Agarwal relies upon the
judgments of Supreme Court in the case of
Resurgence India Vs. Election Commission of India
and another; 2014(1) OLR SC 102, Kisan Shankar
Kathore Vs. Arun Dattatray Sawant and others;
(2014) 14 SCC 162 and Mairembam Prthiviraj Vs.
Pukhrem Sharatchandra Singh; (2017) 2 SCC 487.
On such basis, Mr. Agarwal would argue that the
Election Petitioner has pleaded in detail under
Paragraphs 8(A) to 8(J) of the Election Petition as to
how the Respondent has made false, incorrect and
misleading disclosures and also suppressed material
information with regard to movable and immovable
assets of self, spouse and dependents in the affidavit in
Form No.26 along with his nomination paper. So, had
his nomination been rejected by the Returning Officer
or if the Election Petitioner is able to prove such
assertions, it would result in declaring the election of
the Respondent void. According to Mr. Agarwal
therefore, the Election Petitioner having pleaded the
material facts along with the assertion that the same
has materially affected the result of the election, the
same gives rise to triable issues for which the petition
for rejection of the plaint is untenable.
Mr. Agarwal further argues that though the
Respondent has alleged that the Election Petitioner by
stating that the Returning Officer acting at the behest
of the respondent had improperly and illegally accepted
the nomination paper which amounts to a corrupt
practice for which affidavit in Form 25 should have
been filed as per Rule 94-A of the Conduct of Elections
Rules, the same actually does not amount to a corrupt
practice. Even assuming that it is a corrupt practice,
the same is a curable defect. Mr. Agarwal has relied
upon the following judgments of the Supreme Court in
this context;
1.Sambhu Prasad Sharma v. Charandas
Mahant; AIR 2012 SC 2648.
2.Kanimozhi Karunanidhi v. A. Santhana
Kumar & Oth.;(2023) 4 SCR 798.
3. Karikho Kri v. Nuney Tayong & Oth; 2024
SCC OnLine SC 519.
4. Karim Uddin Barbhuiya v. Aminul Haque
Laskar; (2024) 4 SCR 523.
5.High Court of Madhya Pradesh at
OF 2024.
6.Ram Sukh vs. Dinesh Aggarwal; AIR 2010
SC 127.
12. Coming to the specific paragraphs of the
Election Petition, in so far as Paragraph-8(A) is
concerned, Mr. Mohanty has argued that the pleadings
do not show how there was violation of Section 33-A of
the Act nor of Rule 4-A of the Conduct of Elections
Rules, 1961. The pleadings also are silent as to if the
Election Petitioner and/or his Agent had filed objection
before the Returning Officer at the time of scrutiny of
nomination.
In reply, Mr. Gopal Agarwal argues that the
Election Petitioner had filed two affidavits
dtd.20.4.2024 and 22.4.2024 in Form No.26, which he
downloaded from the Web Portal of the Election
Commission of India. It was found that both the
affidavits contained false, incorrect and misleading
information/declaration by the respondent but the
Returning Officer illegally accepted the nomination
paper. This improper and illegal acceptance of the
nomination papers and the affidavits by the Returning
Officer at the behest of the Respondent has materially
affected the result of the election. According to Mr.
Agarwal, the above pleading is clear and specific. The
Election Petitioner has referred to the two affidavits
filed by the Respondent containing false and
misleading information/declaration, which the Election
Petitioner shall attempt to prove during trial. So,
according to Mr. Agarwal, it raises a triable issue.
13. This Court has perused the pleadings under
Paragraph-8(A), which states that the two affidavits
filed on 20.4.2024 and 22.4.2024 in Form 26 by the
Respondent is in violation of Section 33-A of the Act
read with Rule 4-A of the Conduct of Elections Rules.
According to the Election Petitioner, said affidavits
contain false, incorrect and misleading
information/declaration. The details of such
false/misleading information have been further
enumerated in the subsequent paragraphs. Therefore,
Paragraph-8(A) has to be read conjointly with the other
paragraphs. The argument advanced by Mr.Mohanty
referring only to Paragraph-8(A) cannot therefore, be
accepted.
14. Paragraph-8(B) essentially relates to the same
issue as covered under Paragraph-8(A) and therefore,
the same are not required to be examined further.
However, according to the Respondent-petitioner, the
allegations made in Paragraph-8(B) relate to corrupt
practice and therefore, the details ought to have been
pleaded. In this regard, Mr.Mohanty would refer to
Paragraph-8(B) and particularly to the portion thereof
where it is alleged that the Returning Officer, at the
behest of the Respondent, deliberately, illegally and
improperly accepted the nomination paper of the
Respondent. Mr.Mohanty also refers to Section 123(7)
of the Act in this regard.
Mr.Gopal Agarwal, on the other hand, would
argue that the Election Petitioner has not alleged
corrupt practice within the meaning of Section 123 of
the Act at all. The allegations relate to the false and
misleading information given by the Respondent in the
affidavit in Form 26 at the time of nomination and that
the same should not have been accepted by the
Returning Officer. The allegation of improper
acceptance of nomination paper of the Respondent by
the Returning Officer is not intended to be projected as
a corrupt practice.
15. Law is well settled that if there is allegation of
corrupt practice then all material facts constituting the
corrupt practice according to the Election Petitioner
ought to have been specifically pleaded. 'Corrupt
practice' has been defined under Section 123 of the Act
and sub-section 7 reads as follows;
"Section 123(7) The obtaining or procuring
or abetting or attempting to obtain or procure
by a candidate or his agent or, by any other
person [with the consent of a candidate or
his election agent), any assistance (other
than the giving of vote) for the furtherance of
the prospects of that candidate's election,
from any person in the service of the
Government and belonging to any of the
following classes, namely:-
a) gazetted officers;
b) stipendiary judges and magistrates;
c) members of the armed forces of the Union;
d) members of the police forces;
e) excise officers;
f) revenue officers other than village revenue
officers known as lambardars, malguzars,
patels, deshmukhs or by any other name,
whose duty is to collect land revenue and
who are remunerated by a share of, or
commission on, the amount of land revenue
collected by them but who do not discharge
any police functions; and
g) such other class of persons in the service
of the Government as may be prescribed:
[Provided that where any person, in the
service of the Government and belonging to
any of the classes aforesaid, in the discharge
or purported discharge of his official duty,
makes any arrangements or provides any
facilities or does any other act or thing, for,
to, or in relation to, any candidate or his
agent or any other person acting with the
consent of /the candidate or his election
agent (whether by reason of the office held
by the candidate or for any other reason),
such arrangements, facilities or act or thing
shall not be deemed to be assistance for the
furtherance of the prospects of that
candidate's election."
A careful reading of the allegations made in
Paragraph-8(B) does not in the least indicate that there
was any such allegation that the Respondent had
influenced the Returning Officer and obtained any
assistance for furthering his prospects. On the
contrary, the pleadings merely indicate that the
affidavits filed by the Respondent being false and
misleading should not have been accepted. It is
needless to mention that this aspect has to be proved
at first. If proved, it would be held to be a mistake
committed by the Returning Officer but in the absence
of any specific allegation that same was committed
deliberately to further the prospects of the candidate in
the election, it cannot qualify as a corrupt practice so
as to fall within the mischief of sub-section (7) of
Section 123. Law requires the Election Petitioner to file
an affidavit in Form 25 with regard to the allegations of
corrupt practice. Since this Court does not find that
the Election Petition contains any allegation of corrupt
practice, there was no question of filing any affidavit in
Form 25. In such view of the matter, the argument
advanced by Mr.Mohanty with regard to the pleadings
in Paragraph-8 (B) are not tenable.
16. As regards Paragraph-8(C), it is argued by Mr.
Mohanty that the pleadings therein do not explain as
to how non-disclosure of the date of deposit and other
particulars of the Bank and Bank accounts of the
Respondent and his spouse in Column 7(A)(ii) of the
affidavit in Form 26 has materially affected the result
of the Election, has not been stated. Further, no
supporting documents have been filed to show that the
Respondent had willfully suppressed or gave incorrect
information in this regard.
Per contra, Mr. Gopal Agarwal would argue that
the object of disclosure with regard to the deposits etc.
in the relevant column of the affidavit in Form 26 is to
make the voters aware of the financial position of the
candidate and non-disclosure thereof is fatal to the
nomination. According to the Election Petitioner, the
Respondent had not disclosed the details of
deposits/investments including serial number,
amount, date of deposit, the scheme, name of the Bank
and branch, the nature of deposits etc. in the relevant
column. According to him, the particulars disclosed
are incomplete and in the absence of the date of
deposit and the name of the branch of the Bank, it is
not possible for the voter to know the correct details
thereof. So, such incomplete disclosure amounts to
false and misleading declaration, which was illegally
accepted by the Returning officer. Had these aspects
been considered by the Returning Officer, the
nomination of the respondent would not have been
accepted and therefore, the same would have
materially affected the result of the election.
17. After considering the rival contentions, this
Court finds considerable force in the submission of Mr.
Agarwal that all necessary particulars as required to be
incorporated in the affidavit in Form 26 under Clause-
7 were, according to the Election Petitioner, not given.
Whether this would amount to contravention of the
statutory mandate, thereby invalidating his
candidature is a matter to be decided during trial. The
Election Petition cannot therefore, be thrown out at the
threshold on this ground nor the pleadings be struck
out.
18. With regard to the pleadings in Paragraph-8(D)
of the Election Petition, it is stated that the same do
not disclose as to how the alleged suppression/non-
disclosure of the book value of the shares as per books
of the company in Column-7 (A)(iii) in the affidavit in
Form No.26 materially affected the result of election
and no supporting documents have been filed in
support of such allegations. Mr.Mohanty, learned
counsel appearing for the Respondent-petitioner
submits that unless it is shown that the alleged non-
disclosure had the effect of materially affecting the
result of the election, the pleading has no basis and
therefore, deserves to be struck out.
Mr.Gopal Agarwal, on the other hand, would
argue that the whole object of requiring the candidate
to file affidavit in Form 26 is to provide the voters with
complete information of the financial position of the
candidate in the fray so that they can take an informed
decision to either choose or reject him in the election.
Therefore, any suppression or non-disclosure of a
material fact by the candidate in Form 26 can have the
effect of wrongly influencing the decision of the voters.
The Election Petitioner has adequately pleaded as to
how the Respondent was guilty of suppression/ non-
disclosure with regard to the book value of the shares
held by him.
19. Column 7(A)(iii) of Form 26 referred to in
Paragraph-8(D) requires details to be disclosed with
regard to the investment made by the candidate in
bonds, debentures/shares etc. and also mandates that
the value of the same as per the current market value
shall be given. The Respondent has declared
Rs.1066300/- for Rs.10663/- shares but has not
disclosed the book value of the said shares as per the
books of the company. Whether the same is a material
omission and if so what effect it would have on the
nomination of the candidate is obviously a matter to be
decided at the trial. The Election Petitioner has pointed
out the factum of suppression/non-disclosure in his
pleading, which according to the considered view of
this Court, is sufficient to constitute a valid cause of
action. The contention raised in this regard by the
Respondent is therefore, not acceptable.
20. With regard to the pleadings in paragraph-8(E),
it is stated that the Election Petition does not disclose
as to how the alleged suppression/non-disclosure of
the details of total premium, name of branch, date of
commencement etc. of the L.I.C. policies of the
Respondent materially affected the result of the
election. According to Mr.Mohanty, learned counsel for
the Respondent, all relevant particulars of different
L.I.C. policies purchased and held by the Respondent
were disclosed in the affidavit in Form 26 and if any
particulars were omitted how the same would
materially affect the result of the election has not been
stated by the Election Petitioner.
Mr. Agarwal, on the other hand, makes similar
arguments as in respect of the previous allegation to
the effect that unless all relevant particulars are given
by the candidate there is a possibility that the voters
would be misled. It is for such reason that the statute
has prescribed an elaborate form (Form No.26) to be
submitted by the candidate under affidavit. In the
instant case, it is the stand of the Election Petitioner
that though the Respondent gave details of the L.I.C.
policies held by him yet, the relevant particulars were
not given, which can be treated as non-
disclosure/suppression of material facts.
21. Reading of Paragraph-8(E) reveals that the
Election Petitioner has referred to different L.I.C.
polices held by the Respondent along with their dates
of commencement, amount of premium etc., but the
total premium amount, name of branch, date of
commencement etc. have not been given. This, prima
facie, supports the view that the necessary details are
wanting.According to the considered view of this Court,
this is adequate to maintain the Election Petition.As
regards the stand that the Election Petitioner has not
disclosed as to who conducted the inquiry, date of
inquiry and the source of information and basis of
inquiry etc., the same is not material inasmuch as the
Respondent has himself disclosed the particulars of
the L.I.C. policies in his affidavit in Form No.26 and
the Election Petitioner has only pointed out the gaps
and the facts that have not been disclosed. The fact
that he has pleaded about conducting an inquiry is a
matter to be proved by him during trial. It would
suffice at this stage to maintain the application by
pleading that he came to know of the above from his
own inquiries.
22. As regards the pleadings in Paragraph-8 (F), it is
stated that non-furnishing of the details of the motor
vehicle and its price cannot be treated as a factor
affecting the result of the election in the absence of
anything being pleaded by the Petitioner to show how.
Moreover, the actual price of the vehicle in question
has not been given. Mr. Mohanty would argue that
unless the Election Petitioner states the value of the
car, which according to him is the correct value, it
cannot be said that the value shown by the
Respondent in the affidavit is wrong. According to Mr.
Mohanty therefore, the pleading is non-specific and
vague.
Mr.Gopal Agarwal, on the other hand, would
argue that the requirement of Form 26 in the relevant
Column is to give the details of the Motor Vehicle with
regard to its make, registration number, year of
purchase and the amount. According to the Election
Petitioner, the value given is wrong.
23. Reference to Column 7 (A) (vi) of Form 26 reveals
that the same requires the candidates to furnish the
information i.e., motor vehicles/aircrafts/
yachts/ships (details of make, Registration Number
etc., year of purchase and amount). According to the
Election Petitioner, the Respondent has declared under
Column No.7(A) (vi), a Toyota Car bearing No.0D-07-
AE-4499, the year of purchase as 2021 and the
amount as Rs.818607 (approx.). Though the Election
Petitioner says that the amount of Rs.818607/- is
false, but on what basis, has not been stated. Unless,
it is specifically pleaded that the amount of purchase is
not as declared but is a different amount being
specifically stated, it cannot be accepted that there
was any false declaration. It is settled law that material
facts are also positive averment of a negative fact. The
following observations of the Supreme Court in the
case of Harishankar Jain v. Sonia Gandhi; (2001)
8 SCC 233 are noteworthy in the context.
"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 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 Fernandez18, Jitendra Bahadur
Singh v. Krishna Behari¹9.) 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 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.
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 the 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 evidence. No amount of
evidence can cure basic defect in the
pleadings."
Thus, merely by pleading that the value of the
vehicle declared by the Respondent is false without
further pleading as to how it is so by stating its true
value, it cannot satisfy the rigors of Section 83(1)(a) of
the Act. Not having pleaded so, the Election Petitioner
obviously cannot lead any evidence on such score. This
Court is therefore, of the considered view that the
pleading in Paragraph- 8(F) is frivolous being vague
and non-specific and does not give rise to a cause of
action for which, it deserves to be struck out.
24. As regards the pleadings under Paragraph-8(G),
it is stated that the Election Petition does not reveal
the details in respect of the weight and value of gold
and jewelery items of the Respondent and his spouse
as mentioned in the relevant column of the affidavit
and how the same amounts to a false declaration with
regard to the weight and value thereof. The Election
Petitioner does not say what was the correct weight
and value of the gold, if not what was stated by the
respondent in Form 26. According to Mr.Mohanty, the
Election Petitioner has made a vague allegation and
simply stated that the cost of gold as declared is much
more than the declared amount without specifying
what was the cost of gold. Mr. Agarwal would argue
that the declaration made by the Respondent does not
satisfy the requirement of the affidavit under Form
No.26.
25. Reference to Clause-7(A)(vii) reveals that the
candidate is required to declare the following; jewelry,
bullion and valuable thing(s) (details of weight and
value). As per Paragraph 8(G) of the Election Petition,
Respondent declared gold 600 grams of the value of
Rs.24 lakhs and in respect of his spouse, gold 700
grams of the value of Rs.28 lakhs. It is further stated
that the cost of gold as declared is much more than the
declared amount without specifying what was the
actual amount. It is evident that unless the actual
value of gold is given, it cannot be, prima facie, held
that declaration of value by the Respondent was false
or misleading. In view of the position of law referred to
under Paragraph-23 of this Judgment as also the
reasons indicated therein, the pleading under
Paragraph-8(G) cannot be held as satisfying the strict
requirement of pleadings in an Election Petition. This
Court therefore, finds force in the contention that the
pleading under Paragraph-8(G) is frivolous being vague
and is therefore, liable to be struck out.
26. As regards the pleadings in Paragraph 8(H), it is
stated that the same do not disclose how the non-
disclosure with respect to land, building or apartment
under Clause-7 (B) (iii) (iv) in Form 26 materially
affected the result of election and that too without any
supporting documents. Moreover, the Election Petition
does not state the actual and correct value of land,
building or apartment without stating the actual and
correct value thereof. According to Mr. Mohanty, the
Respondent had in full compliance of the statute
declared all relevant particulars with regard to the
properties held by him showing the amount of
investment.
Mr. Agarwal, on the other hand, submits that
though the Respondent declared 'yes' in respect of
investment on land by way of
development/construction etc. but did not declare the
amount of such investment made for
development/construction of commercial building.
Further, in Col.iv with respect to residential buildings
he has declared 'Nil' whereas in Sl. No.vi, he declares
the current market value as Rs.1 crore as also under
the column of his spouse.
27. Reading of Paragraph-8 (H) reveals that
according to Election Petitioner, in Col.7(B)(iii) with
respect to commercial buildings, the Respondent has
mentioned 'Yes" and also against the Column "any
investment on the property by way of
development/construction etc.", but the approximate
current market value as required in the last column
has not been given. Similarly, in Col.7(B) (iv) in respect
of residential buildings the Respondent has declared
"Nil". Against Col. No.(vi), he has declared the total of
current value as Rs.1 crore both under self and for
spouse. The incongruity is apparent on the face of it
and therefore, according to the considered view of this
Court, gives rise to a cause of action.
28. As regards the pleading in paragraph 8(I), it is
stated that the respondent has not submitted the title
deed, R.O.R. of the immovable properties, the extent of
land or property purchased by him, the factum of his
possession etc. According to Mr.Mohanty, the
respondent has given all particulars and details of the
non-agricultural lands owned by him. Mr.Agarwal, on
the other hand, submits that though the Respondent
has declared 'Nil" in respect of non-agricultural land
but certain lands, the details of which are mentioned
in the said paragraph, are recorded in the names of
some persons, who sold portions of the property to
M/s.Spectrum Properties by registered sale deed
dtd.30.12.2021. The Respondent is the Executant No.2
in the said sale deed. The above transaction having
not been disclosed in the affidavit amounts to non-
disclosure.
29. After considering the contentions advanced by
the parties, this Court is of the view that the Election
Petitioner, by referring to the transactions in question
has, prima facie, alleged that the same was not-
disclosed by the Respondent in the affidavit. The onus
of proof is therefore, on the Election Petitioner at the
time of trial. At this juncture, it is suffice to give the
relevant particulars of the transaction. This Court is
therefore, of the view that the pleading in Paragraph
8(i) reveals a valid cause of action.
30. As regards the pleading in paragraph-8(J), it is
stated that the Election Petitioner has not stated how
the abstract of details in Part-B of Form 26 filed by
the respondent is illegal or which particular
declaration amounts to false declaration, which was
illegally accepted by the Returning Officer. It also does
not disclose as to how and which provision of law was
violated. Mr.Mohanty submits that the pleadings are
vague and non-specific, which cannot give rise to any
cause of action. Mr. Agarwal, on the other hand,
submits that Paragraph 8(J) is a sort of summation of
the averments made in Paragraphs 8(A) to 8 (I) and
therefore, it cannot be read in isolation.
31. Reading of Paragraph 8(J) reveals that
according to the Election Petitioner, the abstract of the
details given in Col. Nos.1 to 10 of Part (A) is false for
which the nomination papers accepted by the
Returning Officer is illegal. Reference to the pleading
would reveal that according to the Election Petitioner,
"the Respondent has made false declaration in Part-B
of the affidavit filed in Form 26 for which the
nomination papers accepted by the Returning Officer is
illegal and improper. xxx xxx xxx xxx." Part (B) of
Form 26 relates to abstract of the details given in 1 to
10 of part (A). In so far as the declarations given in
different columns of Part (A) are concerned, the
Respondent has already pleaded regarding the
declarations made in all the columns under Paragraph-
8 (A) to (I) of the Election Petition. Which of those
declarations are false and which amount to
suppression/nondisclosure have already been stated.
It was therefore, not necessary to repeat such facts.
The argument advanced by Mr. Mohanty is therefore,
not tenable.
32. Apart from the above, the Respondent also
alleges that the pleadings under Paragraphs 9 to 12 of
the Election Petition are bald, unspecific, not based on
any documents, evidence and are therefore, liable to be
struck out. The allegations are clear abuse of the
process of the Court. In this context, Mr. Mohanty
would argue that if the aforementioned paragraphs are
read conjointly, it will show that the Election Petitioner
has made vague and non-specific allegations without
any material basis. Mr. Agarwal, on the other hand,
would submit that the averments in paragraphs-9 to
12 are nothing but summation of whatever was
pleaded under the preceding paragraphs i.e., 8(A) to
8(J) and no new allegation was made therein.
33. Reading of paragraphs 9 to 12 would show that
the Election Petitioner has, in fact, reiterated his
allegations already covered under Paragraphs 8(A) to 8
(J) and has made a sort of summation of the said
allegations. In addition, the Election Petitioner has also
pleaded about the object of the requirement to disclose
all facts in Form 26. After considering the contentions
advanced, this Court is of the considered view that
Paragraphs-9 to 12 cannot be treated as non-specific
or bald in any manner being directly relatable to the
specific allegations made in Paragraphs-8(A) to 8 (J).
34. Thus, from a conspectus of the analysis of
pleadings and the contentions advanced by the parties
as narrated above, this Court is not persuaded to
accept the argument that the Election Petition does not
disclose a cause of action or that the pleadings
contained therein, save and except those under
Paragraphs 8F and 8G, are in any manner
unnecessary, scandalous, frivolous or vexatious
and/or such as may tend to prejudice, embarrass or
delay the fair trial of the suit or are otherwise an abuse
of the Court so as to invoke power under Order VI,
Rule 16 to strike out the same. However, for the
reasons indicated at the appropriate place, this Court
deems it proper to strike out the pleadings under
Paragraphs 8F and 8G of the Election Petition.
Further, in view of what has been narrated
hereinbefore, this Court finds that all other allegations
contained in the Election Petition constitute valid
cause of action and raise triable issues for which the
same does not warrant rejection at the threshold by
exercising power under Order VII Rule 11 of C.P.C.
35. The I.A. is disposed of accordingly.
..................................
Sashikanta Mishra,
Judge
Ashok Kumar Behera
Location: High Court of Orissa, Cuttack
