A.M.KHANWILKAR,J. - (1.) The present appeals emanate from the judgment and order dated 2nd August, 2016 of the High Court of Judicature at Hyderabad for Telangana and Andhra Pradesh, striking off paragraphs 2 and 9 to 11 of the election petition as also dismissing the election petition, being Election Petition No.8 of 2014 filed by the appellant challenging the election of respondent No.1.
(2.) The election in relation to Andhra Pradesh State Legislative Assembly was held on 7th May, 2014. The appellant and respondent No.1 contested the election from the Punganur Assembly Constituency. The respondent No.1 was declared as an elected candidate. By way of an election petition, the appellant challenged the election of respondent No.1 on the ground that respondent No.1 had grossly violated several instructions issued by the Election Commission as also the provisions of The Representation of the People Act, 1951 (for short, "the Act"). Respondent No.1, in turn, took out two applications seeking to strike out paragraphs 2 and 9 to 11 of the said election petition and to dismiss the election petition in limine, both of which were ultimately allowed by the High Court.
(3.) The background to the present conflict is set out as under: a. On 12th April, 2014, a notice of election was issued, inter alia for a seat from the Punganur Assembly Constituency to the Andhra Pradesh State Legislative Assembly; b. Respondent No.1, a member of the Yuvajana Shramika Rythu Congress Party (YSRCP) filed his initial nomination form for the aforesaid elections on 12th April, 2014 along with two affidavits and again, second nomination form on 17th April, 2014 with two fresh affidavits. Appellant, a member of the Telugu Desham Party (TDP), filed his nomination form on 17th April, 2014. c. After scrutiny of the nomination forms, on 21st April, 2014, a total of 8 (eight) candidates, including the appellant and respondent No.1, were found eligible to contest the elections; d. Appellant had filed objections on the same day i.e. 21st April, 2014, objecting to the acceptance of nomination forms of respondent No.1 on the ground that he had failed to sign every page of the affidavits in support of his nomination forms and had also failed to fill up all the columns in his forms, contrary to the rules prescribed in that regard. Respondent No.1 filed his counter to the said objection petition; e. The Returning Officer rejected the objection petition on the ground that the said petition needed no consideration and was hence over-ruled; f. The elections were held on 7th May, 2014, and results were declared on 16th May, 2014. Respondent No.1 was declared as the elected candidate, having secured the highest number of valid votes. Appellant finished second while the remaining 6 (six) candidates lost their deposits; g. Appellant then challenged the election of respondent No.1 by way of an election petition dated 25th June, 2014, under Section 81 read with Sections 83, 100(1)(a) and (d)(i) of the Act before the High Court of Judicature at Hyderabad. He also sought a declaration that he was the duly elected member of the State Legislative Assembly of the 284-Punganur Assembly constituency; h. Respondent No.1 then took out two applications in the said petition viz. E.A. No. 329 of 2015 under Order VI Rule 16 of the Code of Civil Procedure, 1908 (for short "CPC") for striking out the averments made in paragraphs 2 and 9 to 11 of the election petition as being frivolous and vexatious, followed by E.A. No. 330 of 2015 under Order VII Rule 11 of CPC seeking to dismiss the election petition for failing to disclose a cause of action; i. Appellant also took out miscellaneous applications for permission to file rejoinder affidavit, expediting the election petition and for taking note of suppression of material facts by respondent No.1; j. The High Court vide its judgment dated 2nd August, 2016, ("impugned judgment") allowed both the applications of respondent No.1, eventually dismissing the election petition for want of cause of action. The High Court broadly considered three points. First, the sweep of the terms "material facts" and "cause of action" in reference to an election petition; second, whether material facts and cause of action have been pleaded in the subject election petition necessitating a trial; and, third, whether the election petition as filed deserved to be rejected in limine without conducting a trial. While dealing with the first point, the High Court first discussed about the inter-play between Sections 81, 83, 100 and 101 of the 1951 Act. It held that the mandate of these provisions is that the election petition must contain a concise statement of material facts on which the appellant relies and that for the election petition to succeed, the appellant should establish that the nomination of the returned candidate was improperly accepted and further, due to such improper acceptance, the election of the returned candidate has been materially affected. The High Court relied upon the cases of Azhar Hussain v. Rajiv Gandhi, 1986 (1) (Supp) SCC 315 Ram Sukh v. Dinesh Aggarwal, (2009) 10 SCC 541 Pendyala Venkata Krishna Rao v. Pothula Rama Rao, 2005 (3) ALD 47 Hari Shanker jain v. Sonia Gandhi, (2001) 8 SCC 233 and Nandiesha Reddy v. Kavitha Mahesh, (2011) 7 SCC 721 and culled out the principles as follows:- "15) So, on a compendious study of above precedential jurisprudence we will understand: (i) The phrase material facts employed in Section 83(1)(a) of R.P.Act has not been defined and its meaning is a contextual one in a given election petition. (ii) Material facts or facta probanda are those basic, elementary and prime facts which the election petitioner shall plead and if traversed prove for the Court to afford a decree. (iii) Whereas material particulars or facta probantia are the particulars in the form of evidence further vivify, refine and make more clear the material facts. (iv) Material facts are the entire bundle of facts which constitute a complete cause of action for the petitioner and total defence for the respondent." Having said this, the Court then analysed the averments in the election petition in the following words:- "16) POINT No.2: I have carefully scrutinized the contents of the election petition to know whether the 1st respondent/election petitioner had pleaded all the relevant material facts and they constitute cause of action to proceed with trial. It is observed that in his pleadings he has reproduced the five objections taken by him before the 8th respondent/Returning Officer at the time of scrutiny of nomination and reiterated that the Returning Officer has rejected his objections contrary to the Conduct of the Election Rules and guiding principles. He has given the table showing the votes polled to each contesting candidate and pleaded that he stood second highest in the tally. As rightly contended by the petitioner except fulminating that the Returning Officer has unduly rejected his objections, the 1st respondent has not furnished the material facts in his pleadings as to how in his perception and in the eye of law, the order of the Returning Officer is impugnable. A mere scourging of the order of the Returning Officer howsoever fiercely, it must be said, will not constitute material facts and give rise to cause of action unless the pleadings are balanced with the factual and legal reasons projecting where and how the impugned order suffered perversity and illegality. In the instant case, in my considered view, unfortunately the pleadings are totally bereft of such material facts. On completion of reading of pleadings one fails to understand how the order of the Returning Officer was at fault. a) Paras-2, 9 to 11 are specifically attacked by the petitioner on the ground that pleadings in those paras are not supported by any material facts and hence they are liable to be struck out. In para-2 the 1st respondent narrated the five objections taken by him. In para-9 he expressed his grievance that 8th respondent has not considered his objection and his order is contrary to the judgment of the Apex Court in Resurgence Indias case (10 supra). He further mentioned in that para that as per the aforesaid judgment, filing of an affidavit with blank particulars will render the affidavit nugatory. In para-10 he pleaded that in the light of the Apex Courts judgment 8th respondent ought to have rejected the improper nomination of the instant petitioner. He also pleaded that instant petitioner misrepresented the Election Commission as well as 8th respondent as he has not added Rs. 21 lakhs to the gross total of his assets and showed the gross total of his assets and showed the gross total as Rs. 2,79,67,680/- instead of Rs. 3,00,67,680/-. Whereas in para-11 under the caption Grounds 1st respondent reiterated that 8th respondent has made improper acceptance of nomination. The cumulative effect of paras-2, 9 to 11 is nothing but again lampooning the order of 8th respondent as erroneous without demonstrating as to how his order was factually and legally perverse and wrong. Even the mentioning of the judgment in Resurgence Indias case (10 supra) and the allegation that the petitioner suppressed Rs. 21 lakhs from the total assets, we will presently see, will not constitute any material facts so as to strengthen the allegations in paras-2, 9 to 11." ;