CHAUHAN, J. - (1.) THE instant application has been filed by respondent No.1, the returned candidate, under Order 7 Rule 11 read with Order 6 Rule 2 of the Code of Civil Procedure read with Sections 83(1) (a) and 87 of the Representation of People Act, 1951 (for short, "the Act, 1951"), contending that the election petition does not contain full material facts and particulars, therefore, it does not disclose any cause of action and, thus, liable to be rejected at the threshold without holding the trial.
(2.) THE election petition has been filed by one Shree Narain Dhanuka claiming that he is a voter of Natangarh Assembly Constituency and was counting agent of Shri Hari Shanker Bhabhara, respondent No.6, who was a B.J.P. candidate. Petitioner stated that he was present during counting of the votes on 28.11.98; the margin of votes between the returned candidate and respondent No.6 Shri Bhabhara was only of 377 votes. THE difference of victory being marginal and there had been various illegalities and irregularities in counting of the votes which materially affected the result of the election; the application filed by the election agent of Shri Bhabhara for recounting of votes was wrongly rejected by the Returning Officer, therefore, the election petition should be allowed and directions should be issued for inspection and recounting of votes. THE instant application has been filed by the returned candidate submitting that for lack of material facts and specific allegations, petition does not disclose any cause of action and thus, the same is liable to be rejected at this stage without proceeding for trial. In D. Ramachandran vs. R.V. Janakiraman & Ors. (1), the Hon'ble Supreme Court has laid down as under:- "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 triable issue as such. The Court cannot probe into the facts on the basis of the controversy raised in the counter..." In Azhar Hussain vs. Rajiv Gandhi (2), Hardwari Lal vs. Kanwal Singh (3) and Harish Chandra Bajpai vs. Triloki Singh (4), the Hon'ble Supreme Court held that for lack of material facts and full particulars, the election petition alleging corrupt practices is liable to be dismissed in limine as the same does not disclose the cause of action as the trial is to be held under the provisions of the Code of Civil Procedure, 1908 (hereinafter called, "the Code"). In V.S. Achuthanandan vs. P.J. Francis & Anr. (5), the Hon'ble Supreme Court dealt with a case dismissed by the High Court under Section 83(1)(a) read with Order 7 rule 11 of the Code, where the main allegations had been of adopting the corrupt practices and irregularity/illegality in counting of ballots. The Court observed that while interpreting the provisions of O.7 R.11 of the Code and Section 83 read with Section 123 of the Act, the Court would not take a hypertechnical view as it would frustrate the purpose of the purity of the elections and to ascertain the true wishes and will of the people in choosing their leader in a democratic system. The trial Court must also affect an opportunity to the party to plead on record the circumstances justifying the re-count. The Court further observed as under:- "It is true that on vague and ambiguous evidence, no Court can direct re-count. But it is equally true that the doors of justice cannot be shut for a person seeking recount without affording him an opportunity of proving the circumstances justifying a recount." In L.R. Shivaramagowda vs. T.M. Chandrashekar (6), the Hon'ble Supreme Court has categorically held that while failure to plead material facts is fatal to an election petition, absence of material particulars can be cured at a later stage by appropriate amendment.
(3.) IN Udhav Singh vs. Madhav Rao Scindia (7), the Apex Court observed that the word "material" shows that the facts necessary to formulate cause of action must be stated. Happening of a fact as well as fact itself is material. Omission of a single material fact leads to an incomplete cause of action and the statement of claim becomes bad. The particulars present full 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. The Hon'ble Supreme Court explained the distinction between the grounds, material facts and material particulars by observing as under:- "IN short, all those facts which are essential to clothe the petitioner with a complete cause of action are `material facts' which must be pleaded, and failure to plead even a single material fact amounts to disobedience of the mandate of Section 83(1) (a). `Particulars' on the other hand, are `the details of the case set up by the party.' `Material particulars' within contemplation of Clause (b) of Section 83 (1) would therefore mean all the details which are necessary to amplify, refine and embellish, the material facts already pleaded in the petition in compliance with the requirement of Clause (a). `Particulars' serve the purpose of finishing touches to the basic contours of a picture already drawn, to make it full, more detailed and more informative". Similar explanation was provided by the Hon'ble Supreme Court in Samant N. Balakrishna vs. George Fernandez (8). There "may be some over-lapping between material facts and particulars but the two are quite distinct." In V. Narayanaswamy vs. C.P. Thirunavukkarasu (9), the Hon'ble Apex Court, while dealing with a case of corrupt practice, held that election petition must disclose cause of action and for the said purpose, petition must be read and considered as a whole and the same cannot be rejected merely on the ground of non-disclosure of cause of action if dissected in several parts. The Court observed that material facts and material particulars connote two different things. The difference between `material facts' from `material particulars' was re- stated as material facts constitute the cause of action. In election petition, the allegations cannot be equated with the cause of action as is normally understood because of the consequences that follow in a petition based on serious allegations. However, to furnish the material facts, if names of all persons involved in causing illegality or irregularity are not given, the names of few must be given and in absence of these material facts, the petition cannot be tried. The Court made the following observations:- "It will be thus seen that an election petition is based the rights, which are purely the creature of a statute, and if the statute renders any particular requirement mandatory, the Court cannot exercise dispensing power to waive non-compliance. For the purpose of considering a preliminary objection as to the maintainability of the election petition, the averments in the petition should be assumed to be true and the Court has to find out whether these averments disclosed a cause of action or a triable issue as such. Sections 81, 83 (1) (c) and 86 of the Act read with rule 940A of the Rules and Form 25 are to be read conjointly as an integral scheme. When so read, if the Court finds non-compliance, it has to up-hold the preliminary objection and has no option except to dismiss the petition. There is difference between `material facts' and `material particulars.' While a failure to plead material facts is fatal to the election petition, the absence of material particulars can be cured at a later stage by an appropriate amendment. `Material facts' mean the entire bundle of facts, which would constitute a complete cause of action and these must be concisely stated in the election petition, i.e. Clause (a) of Sub-section (1) of Section 83. Then under Clause (b) of Sub-section (1) of Section 83, the election petition must contain full particulars of any corrupt practice. These particulars are obviously different from material facts on which the petition is founded.... It is the violation of the provisions of Section 81 of the Act which can attract the application of the doctrine of substantial compliance. The defect of the type provided in Section 83 of the Act, on the other hand, can be dealt with under the doctrine of curability, on the principles contained in the Code of Civil Procedure. Non-compliance with the provisions of Section 83 may lead to the dismissal of the petition if the matter falls within the scope of Order 6 Rule 16 and Order 7 Rule 11 of the Code of Civil Procedure. Where neither a verification is there in the petition nor the affidavit gives any indication of the sources of information of the petitioner as to the facts stated in the petition which are not to his knowledge and the petitioner persists that the verification is correct and the affidavit in the form prescribed does not suffer from any defect, the allegations of corrupt practices cannot be inquired and tried at all. In such a case, the petition has to be rejected on the threshold for non-compliance with the mandatory provisions of law as to pleadings. It is no part of the duty of the Court suo moto even to direct furnishing of better particulars when objection is raised by the other side." ;