Nath Gautam Vs. Satpal Singh & Ors  Insc 922 (8 December 2006)
Thakker & R.V. Raveendran C.K. Thakker, J.
appeal is filed by the appellant against the judgment and order dated December 20, 2004 passed by the High Court of Himachal
Pradesh, Shimla in Election Petition No. 2 of 2003. By the said order, the High
Court upheld the preliminary objection raised by the first respondent that the
Election Petition did not disclose material facts and was liable to be
case of the appellant is that the Election Commission of India notified the programme
for the elections to the Legislative Assembly in the State of Himachal Pradesh scheduled to be held in February,
2003. As per the said notification, the last date of filing of nomination
papers was February 7, 2003, scrutiny - February 8, 2003, date of withdrawal February
10, 2003, date of polling February 26, 2003 and of counting of votes March 1,
2003. According to the appellant, he submitted his nomination paper as a candidate
of Indian National Congress Party on February 26, 2003 from 32 Una Assembly Constituency.
Respondent No. 1 was set up by Bhartiya Janata Party and contested the election
from the said constituency. At the counting, according to the appellant, he
secured 27,600 votes while the first respondent got 27,651 votes. Thus, by a
small margin of 51 votes, the first respondent was declared successful
to the appellant, there were several irregularities and illegalities as also
discrepancies in the Voters List. Electronic Voting Machines which were
employed were defective; many void votes had been polled; there were cases of
double voting and all those illegalities vitiated the election and materially
affected the result thereof. The appellant, therefore, filed an Election
Petition on April 10,
2003. In the said
petition, he alleged that one Tek Chand Thakur was the Returning Officer for
the constituency in question. At the time of counting, the appellant requested
the Returning Officer that he had come to know that many void votes had been
cast and they should be deleted from counting, but the Returning Officer
expressed his inability and helplessness to do so stating that there was no
such mechanism in the Electronic Voting Machines.
paragraph 8 of the Election Petition, the appellant stated that as many as 188
votes had been wrongly counted though they were invalid/void votes. In the
Election Petition itself, the appellant had given details of all such votes. He
also stated that since the margin of votes between the defeated candidate and
the returned candidate was only 51 votes and the wrong counting of votes
amounted to 188 invalid/void votes, it had materially affected the result of
8(i), he stated that as many as 37 votes of dead persons have been cast and
they should not have been counted. The appellant had given names of those dead
persons along with numbers in the voters' list.
certificates of 36 persons were filed as Annexure EP-3 to EP-38. He stated that
the Gram Panchayat concerned had not issued death certificate in respect of one
Mukesh Kumar. He, therefore, annexed Death Report along with a forwarding
letter dated April 7,
2003 in respect of
deceased Mukesh Kumar issued by the Senior Medical Officer, Zonal Hospital, Una District, Una.
appellant also stated that out of 37 votes, 30 votes had been polled in booth
Nos. 48 and 49, in the native village of the first respondent-returned
paragraph 8(ii), the appellant alleged that as many as 60 double votes had been
cast which was in contravention of the provisions of Section 62(4) of the
Representation of the People Act, 1951 (hereinafter referred to as "the
Act"). Thus, 120 votes had been counted though voters were only 60. It was
in violation of the statutory provision and those votes were, therefore, void.
The details of those votes had also been mentioned in the Election Petition
paragraph 8(iii), the appellant averred that 19 void votes had been polled.
Even though all those persons cast their votes in booth Nos. 76 and 63 of Kutlehar
33 Constituency, in Una 32 Constituency, the same voters had again cast their
votes. The appellant has given details of those voters in the Election
to the appellant, the returned candidate was the beneficiary of those void
votes and since the margin was small, the result had been materially affected.
paragraph 8(iv), the appellant had alleged that material irregularities had
been committed by the Returning Officer while counting Postal Ballot Papers.
Six persons named in the petition had sent double Postal Ballot Papers. So
instead of six votes, twelve votes had been cast.
to the appellant, irregularities and illegalities mentioned in paragraph 8 had
materially affected the result of the election. Had there been proper voting
and counting, the appellant would have secured more number of votes than the
first respondent. On the above grounds, a prayer was made by the appellant to
call for the record of the Electronic Voting Machines, to inspect all polled
votes of 32 Una Assembly Constituency and of booth Nos. 76 and 36 of Kutlehar 33
Assembly Constituency, to order re-counting, to set aside and declare election
of the first respondent void and to declare appellant as duly elected candidate
from 32 Una Constituency. Other reliefs were also prayed for.
written statement was filed by the respondent controverting facts stated,
allegations leveled and averments made in the Election Petition. He denied all
the allegations of the appellant. He also raised a preliminary objection as to
maintainability of petition contending inter alia that as no objection had been
taken by the appellant at an appropriate stage, it was not open to him to raise
such contentions after the election was over and result was declared. It was
further contended that the petition had not been properly verified as required
by law and the appellant had not disclosed the names of persons from whom he
had received information as to averments made in sub-paragraphs (i) to (iv) of para
8 of the petition. The first respondent also asserted that the petition lacked
material facts and full particulars as required by law. The allegations in the
petition were vague and did not disclose sufficient grounds for re-counting for
which prayer was made.
to the first respondent, since the petition did not disclose cause of action,
it was liable to be dismissed on that ground alone. Apart from that, even on
merits, nothing could be pointed out which would enable him to claim any of the
reliefs sought in the Election Petition and the petition was liable to be
replication, the appellant submitted that the objections raised by the first
respondent-returned candidate were ill-founded and reiterated what he had
stated in the main petition. According to him, allegations were not vague, but
self-explanatory and based on material facts and full particulars.
basis of the pleadings, the High Court framed eight issues. The High Court,
however, treated issues Nos. 5, 6 and 8 as preliminary issues. Since, we are
concerned in the instant case only with regard to preliminary issues, they may
Whether the election petition does not disclose any cause of action?
Whether the petition lacks in material facts and particulars, as contemplated
under Section 83 of the Representation of People Act?
Whether the petitioner is estopped from claiming recounting of votes? The High
Court then heard the learned counsel for the parties on the above three issues.
The High Court noted that it was contended by the learned counsel for the
returned candidate that the Election Petition did not disclose cause of action
by placing on record material facts on which the defeated candidate relied in support
of the challenge made by him and the petition was liable to be dismissed. The
High Court considered the relevant provisions of the Act as also the leading
decisions of this Court and passed the following order;
the reasons recorded above, the election petition cannot be said to be in
accordance with Section 83(1)(a) of the Act being bereft of primary facts to
complete the cause of action.
defect cannot be cured even by amendment of the petition.
conclude, the petitioner has not disclosed all material facts and has withheld
the same. In the absence of such facts, a roving inquiry cannot be permitted.
There is no dispute that if para 8 sub-paras (i) to (iv) are deleted, nothing
survives in the election petition for putting the petition for trial.
the aforesaid reasons, para 8 sub-paras (i), (ii), (iii) and (iv) are struck
down being vague, indefinite and lacking in material particulars.
striking down of the said paras, nothing survives in the election petition. The
petition is rejected with costs quantified at Rs. 5000/-.
supplied) Regarding 37 votes of dead persons, the High Court observed that
according to the appellant, 30 such votes out of 37 votes were cast in booth
Nos. 48 and 49 which was in the native place of the first respondent-returned
candidate. The Court stated that so far as that allegation was concerned, there
was not a word as to how many of those votes were cast in favour of the
returned candidate and who cast those votes. The Court proceeded to observe
that the defeated candidate did not say that he raised any objection when
electoral rolls were prepared or revised under Section 21 of the Representation
of the People Act, 1950.
Court then stated;
defeated candidate does not say that he was not aware of the entries of the
dead persons in the Electoral Roll which, in my view, is a material fact and
ought to have been pleaded".
High Court also observed that there was not a word, a whisper that the polling
agents challenged the identity of the persons who allegedly voted for dead
electors. No reason was put forward as to why it was not challenged. In the
opinion of the High Court, it was a material fact which ought to have been
pleaded to enable elected candidate to meet the challenge. According to the
High Court, when the appellant had given particulars of dead persons for whom
the voting right was exercised by impersonation, he must have known at the time
of polling that those electors were dead. If he was not aware, he ought to have
stated as to when and how he came to know about 37 voters whose names appeared
in the electoral rolls and how by personation votes were polled. There was no
allegation that the votes cast due to impersonation of the dead persons were
managed by the returned candidate or his supporters or election agent.
said allegation thus lacked material facts. Omission to mention those material
facts rendered the cause of action incomplete, observed the High Court.
According to the High Court, merely because the returned candidate had won by a
narrow margin, it could not be a reason for inspection of ballot papers or
re-counting of votes.
60 persons alleged to have exercised right to vote twice in the same
constituency in booth Nos.
49, thereby resulting in 120 void votes in Una 32 Constituency, the High Court
observed that the Election Petition was silent as to when and how the appellant
came to know about the persons having cast their votes in different booths in
the same constituency. He did not state who impersonated for those persons in
the other booth. The appellant also did not say precisely as to when he came to
know that 60 persons had voted twice.
19 persons alleged to have voted in two different constituencies, the High
Court observed that the allegations were not supported by material facts. Even
though the pleading indicated that the defeated candidate was aware of the
persons who voted twice at the same constituency and in different
constituencies, neither he nor any person on his behalf raised any objection at
the relevant time. He also did not disclose the source of information regarding
casting of void votes which was a material fact. Only a bald assertion had been
made which was not sufficient.
double voting in para 8(iv) while counting postal ballot papers, it was the
case of the appellant that instead of six votes, twelve votes were cast because
of double Postal ballots. The High Court observed that the appellant had given
details of those persons including the vote number, yet it held the allegation
on the face of it was "bereft of material facts" and presumptuous.
The High Court observed that the allegation would not lead to the conclusion
that in fact those six persons cast their votes twice and it materially
affected the result of returned candidate. It was also not stated in the
petition that those six persons had been issued double postal ballot papers and
that all the twelve ballot papers were counted in favour of the returned
candidate. According to the High Court, it was a material fact and since it was
not stated, the cause of action was not complete.
High Court, therefore, concluded;
allegations made by the defeated candidate are vague, indefinite, bereft of
material facts. It is not precisely stated as to how many void votes were cast
in favour of the returned candidate and if such void votes were not counted in
his favour, the defeated candidates would have been elected." On the basis
of the said reasons, the High Court held that the Election Petition could not
be said to be in accordance with Section 83(1)(a) of the Act and the defect
could not be cured by amendment of the petition.
the appellant had not disclosed all material facts, no roving inquiry could be
permitted. The High Court, therefore, ordered striking down sub-paras (i),
(ii), (iii) and (iv) of para 8 which resulted in rejection of the Election
Petition without entering into merits of the case.
On February 14, 2005, notice was issued by this Court.
Interim order was also passed to the effect that Electronic Voting Machines
used in two polling booths of 32- Una Assembly Constituency and Booth Nos. 63
and 76 of 33 Kutlehar Assembly Constituency be preserved until further orders.
The appeal was thereafter ordered to be placed for final hearing.
have heard the learned counsel for the parties.
learned counsel for the appellant contended that the High Court has committed
an error of law in dismissing the Election Petition at the threshold without
entering into merits of the matter on the ground that it did not set out
material facts in the Election Petition and failed to disclose cause of action
and as such it was liable to be dismissed. According to the learned counsel,
not only material facts had been set out in the Election Petition, but full
particulars had also been mentioned.
High Court was, therefore, not right in dismissing the petition without
entering into the correctness or otherwise of the allegations and averments in
the petition. The counsel, therefore, submitted that the appeal deserves to be
allowed by setting aside the order of the High Court and by remitting the
Election Petition to be decided on merits.
learned counsel for the respondents, on the other hand, supported the order
passed by the High Court. He submitted that the law requires that material
facts and full particulars ought to have been stated in the petition. Failure
to do so would result in dismissal of the petition and since material facts and
full particulars had not been mentioned in the Election Petition, the High
Court was right in upholding the preliminary objection of maintainability of
petition raised by the returned candidate and in dismissing the petition. He
also submitted that the High Court was right in observing that at the relevant
stage, no objection was taken either by the defeated candidate or by his
election agent and only after the appellant had lost the election that he came
forward by raising all technical objections. He, therefore, prayed for
dismissal of the appeal by affirming the order of the High Court.
we deal with the contentions of the parties, it would be appropriate if we
refer to the relevant provisions of the Act. The Preamble of the Act declares
that the Act has been enacted "to provide for the conduct of elections of
the Houses of Parliament and to the House or Houses of the Legislature of each
State, the qualifications and disqualifications for membership of those Houses,
the corrupt practices and other offences at or in connection with such
elections and the decision of doubts and disputes arising out of or in
connection with such elections".
is Preliminary. Part II deals with qualifications and disqualifications for
membership of Parliament and of State Legislatures. While Part III provides for
issuance of notifications for elections, Part IV relates to administrative
machinery for the conduct of elections.
59 and 60 lay down manner and procedure of voting. Section 61 prescribes
special procedure for preventing personation of electors. Section 62 relates to
right to vote. It is a material provision and may be quoted in extenso;
Right to vote.(1) No person who is not, and except as expressly provided by
this Act, every person who is, for the time being entered in the electoral roll
of any constituency shall be entitled to vote in that constituency.
person shall vote at an election in any constituency if he is subject to any of
the disqualifications referred to in section 16 of the Representation of the
People Act, 1950 (43 of 1950).
person shall vote at a general election in more than one constituency of the
same class, and if a person votes in more than one such constituency, his votes
in all such constituencies shall be void.
person shall at any election vote in the same constituency more than once,
notwithstanding that his name may have been registered in the electoral roll
for the constituency more than once, and if he does so vote, all his votes in
that constituency shall be void.
person shall vote at any election if he is confined in a prison, whether under
a sentence of imprisonment or transportation or otherwise, or is in the lawful
custody of the police;
that nothing in this sub-section shall apply to a person subjected to
preventive detention under any law for the time being in force.
Nothing contained in sub-sections (3) and (4) shall apply to a person who has
been authorized to vote as proxy for an elector under this Act in so far as he
votes as a proxy for such elector.
of elections has been dealt with in Part V.
VI relates to 'Disputes regarding elections'. Section 80 requires any election
to be questioned only by way of Election Petition. Under Section 80A, it is the
High Court which can try election petitions. Section 81 provides for
presentation of election petition and prescribes the period of limitation.
Section 82 declares as to who shall be joined as respondents to such Election
Petition. Section 83 deals with contents of petition and reads thus-
Contents of petition.(1) An Election petition (a) shall contain a concise
statement of the material facts on which the petitioner relies;
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:
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.
Any schedule or annexure to the petition shall also be signed by the petitioner
and verified in the same manner as the petition.
100 enumerates grounds for declaring election to be void which inter alia
includes improper reception, refusal or ejection of any vote or the reception
of any vote which is void or there is non-compliance with the provisions of the
Constitution or of the Act or Rules or orders made under the Act. Section 101
empowers the High Court to declare a candidate other than the returned
candidate to have been elected. Section 123 declares certain practices as
"deemed to be corrupt practices".
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 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.
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 VII of the Code.
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',
'pivotal', indispensable', 'elementary' or 'primary'. [Burton's Legal Thesaurus, (Third 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.
leading case of Phillips v. Phillips, (1878) 4 QBD 127 : 48 LJ QB 135, Cotton,
particulars are to be stated must depend on the facts of each case. But in my
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." In Bruce v. Odhams Press Ltd., (1936) 1 KB 697 : (1936) 1 All ER
287, Scott, L.J. referring to Phillips v. Phillips observed:
cardinal provision in Rule 4 is that the statement of claim must state 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 R.S.C. Order 25 Rule 4 (see Phillips v.
Phillips); or 'a further and better statement of claim' may be ordered under
Rule 7." 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.
'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
the details of the case which is in the nature of evidence a party would be
leading at the time of trial.
Laws of England, (4th edn.); Vol.36; para 38, it has been stated;
function of particulars is to carry into operation the overriding principle
that the litigation between the parties, and particularly the trial, should be
conducted fairly, openly and without surprises, and incidentally to reduce
costs. This function has been variously stated, namely either to limit the
generality of the allegations in the pleadings, or to define the issues which
have to be tried and for which discovery is required. Each party is entitled to
know the case that is intended to be made against him at the trial, and to have
such particulars of his opponent's case as will prevent him from being taken by
surprise. Particulars enable the other party to decide what evidence he ought
to be prepared with and to prepare for the trial. A party is bound by the facts
included in the particulars, and he may not rely on any other facts at the
trial without obtaining the leave of the court." In para 8, the
election-petitioner has asserted that as many as 188 votes have been wrongly
counted in spite of the fact that all those votes were invalid/void votes.
also stated that since the margin of votes between the defeated candidate and
the successful candidate was only 51, wrong counting of 188 invalid/void votes
'materially affected' the result of the election. The High Court had not dealt
with at all paragraph 8 in the impugned judgment. Only on this short ground, in
our opinion, the impugned order deserves to be set aside.
even otherwise, the reasoning adopted and conclusions arrived at by the High
Court on sub-paras (i) to (iv) of para 8 are equally ill-conceived. In para 8(i),
the election-petitioner has stated that 37 votes of dead persons had been cast
and they were thus void votes and could not have been counted. Not only the
election- petitioner had given the names of all 37 persons, but had also
annexed death certificates of 36 persons along with the Election Petition in
the form of Annexures EP 3 to EP
Regarding the remaining one, he had stated that the Gram Panchayat had not
issued death certificate, but Death Report issued by the Senior Medical Officer,
Zonal Hospital, Una had been annexed at Annexure EP 39.
High Court, dealing with the allegation in para 8(i) has observed that there
was nothing to show and not a word as to how many of those 37 votes were cast
in favour of the returned candidate and who cast those votes. It was also
observed that the defeated candidate never raised any objection at the time of
polling and at the stage of filing Election Petition, it was not open to raise
an objection. It was further observed that it was not the case of the
election-petitioner that he was not aware of death of those persons at the time
of polling and it was a case of personation of electors within the meaning of
Section 61 of the Act. There was also not a whisper, observed the High Court
that the polling agent had challenged the identity of the persons who allegedly
voted for the dead electors. The High Court also stated that it was not stated
in the Election Petition that the returned candidate or his supporters or
election agent managed to have votes cast by impersonation. All these facts,
according to the High Court, were material facts and since they were not stated
in the Election Petition, the petition was defective.
unable to agree with the High Court. In our opinion, the considerations which
weighed with the High Court were in the nature of 'evidence' which is a matter
to be considered and proved at the time of trial. The High Court was also not
right in virtually invoking the doctrine of estoppel and in dismissing the
petition on that ground.
allegations in para 8(ii) of the Election Petition, the election-petitioner has
alleged that there was double voting by 60 voters which was in violation of
section 62(4) of the Act. The details of those voters have been mentioned in the
petition. It was also stated that out of 120 votes (instead of 60) 104 votes
were cast at booth Nos. 48 and 49 which were in the native village of the first
High Court almost for the same reasons on which it ordered deletion of para 8(i),
has also ordered to delete para 8(ii). It observed that the petition was
significantly silent as to when and how the election- petitioner came to know
about the persons having cast their votes twice in two different booths in the
same constituency. He also did not say who impersonated for those persons in
the other booth. Nothing was stated as to when the petitioner precisely came to
know about the fact that 60 persons had cast their votes twice in different
booths and no reasons was put forward as to why no objection was raised at the
relevant time. All these facts, according to the High Court, were material
facts and since they were not stated, the petition was defective.
respect, the High Court is not right. When the law prevents a person from exercising
right of vote more than once and it is alleged that there was double voting in
respect of certain persons, the 'allegation' can be said to be complete.
Whether or not the election-petitioner is able to prove the said allegation is
a matter of evidence which can be considered only at the stage of trial. By no
stretch of imagination, however, it can be said that the material fact, that
is, allegation regarding double voting had not been stated in the Election
Petition which required Election Petition to be dismissed on that ground.
As to para
8(iii), the case of the election-petitioner was that 19 void votes had been
cast. The said votes being void since 19 persons had exercised their right to
vote in two constituencies, i.e. in Una 32 Constituency as also in booth No 76
and 63 of Kutlehar 33 Constituency.
details of those voters have been mentioned in the Election Petition.
High Court held that material facts had not been stated and observed that it
was not shown as to how the petitioner came to know about the persons listed
having voted in two different constituencies and who impersonated them.
already observed earlier, the approach of the High Court was not in consonance
with law and the High Court entered into prohibited area of considering the
correctness of the allegation which is to be considered and adjudicated at the
time of trial.
in para 8(iv), the election-petitioner has alleged that there was material
irregularity in counting postal ballot papers by the Returning Officer.
According to the election-petitioner, six persons whose names have been
mentioned in the Election Petition had voted twice thereby 12 votes had been
polled. All those 12 votes, therefore, should be treated as void.
High Court observed that the allegation, on the face of it, was 'bereft of
material particulars' and the allegation presumptuous. It observed that nothing
was stated as to how and when the defeated candidate came to know about the six
persons having been issued double ballot papers. The said fact was material to
enable the returned candidate to meet with the allegation of the defeated
candidate. It was also not the case of the election-petitioner that all those
12 ballot papers were counted in favour of the returned candidate and that if
those votes have been counted in favour of the petitioner, the result could
have been materially affected.
basis of our conclusions and reasoning in respect of para 8(i) to (iii), the
finding of the High Court on para 8(iv) also cannot be said to be in consonance
with law. Whether or not six persons had been issued voting papers twice and
whether or not those voters had polled in favour of returned candidate cannot
be said to be a material fact to be stated in the Election Petition.
are required to be stated in the petition are material facts to maintain the
is distinction between facta probanda (the facts required to be proved, i.e.
material facts) and facta probantia (the facts by means of which they are
proved, i.e. particulars or evidence). It is settled law that pleadings must
contain only facta probanda and not facta probantia. The material facts on
which the party relies for his claim are called facta probanda and they must be
stated in the pleadings. But the facts or facts by means of which facta probanda
(material facts) are proved and which are in the nature of facta probantia
(particulars or evidence) need not be set out in the pleadings. They are not
facts in issue, but only relevant facts required to be proved at the trial in
order to establish the fact in issue.
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 VII,
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.
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 Petition was maintainable and dismissed the petition. The
said action, therefore, cannot be upheld and the order deserves to be set
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
High Court dismissed the petition inter alia on the ground that paras 8(i) to (iv)
lacked in material particulars. Apart from the fact that the law does not
require material particulars even in respect of allegations of corrupt practice
but only full particulars and if they are lacking, the petition can be
permitted to be amended or amplified under Section 86 of the act, in the
instant case, Clause (b) of Section 83(1) had no application and the petition
has been dismissed by the High Court by applying wrong test. On that ground
also, the order passed by the High Court is unsustainable [Vide Harkirat Singh
v. Amrinder Singh, (2005) 13 SCC 511].
the foregoing reasons, the appeal deserves to be allowed and is, accordingly,
allowed with costs. The order passed by the High Court is set aside. The
Election Petition No. 2 of 2003 is restored to file, and is remitted to the
High Court to decide the same on merits. Since the election took place in
February, 2003 and the petition was dismissed on preliminary ground as not
maintainable and is required to be decided on merits, the High Court is
requested to give priority and dispose it of expeditiously.