w w w . L a w y e r S e r v i c e s . i n



Radheshyam Darsheema v/s Kunwar Vijay Shah & Others


Company & Directors' Information:- R J SHAH AND COMPANY LIMITED [Active] CIN = L45202MH1957PLC010986

Company & Directors' Information:- SHAH INDIA PVT LTD [Active] CIN = U51909WB1960PTC024535

Company & Directors' Information:- B. B. SHAH PRIVATE LIMITED [Active] CIN = U17117RJ1984PTC002922

Company & Directors' Information:- D M SHAH & COMPANY PVT LTD [Active] CIN = U29244WB1988PTC045183

Company & Directors' Information:- VIJAY INDIA PRIVATE LIMITED [Active] CIN = U25199DL1998PTC096860

Company & Directors' Information:- C. M. SHAH AND COMPANY PRIVATE LIMITED [Strike Off] CIN = U74140MH1971PTC015107

Company & Directors' Information:- KUNWAR AND COMPANY P. LTD. [Strike Off] CIN = U19129WB1989PTC047617

Company & Directors' Information:- T M SHAH PRIVATE LIMITED [Strike Off] CIN = U10101UP1966PTC003139

Company & Directors' Information:- S B SHAH AND COMPANY PRIVATE LIMITED [Active] CIN = U51496DL1991PTC045040

Company & Directors' Information:- H B SHAH PRIVATE LIMITED [Active] CIN = U36100MH1947PTC005536

Company & Directors' Information:- M M SHAH PRIVATE LIMITED [Strike Off] CIN = U51311MH1962PTC012293

Company & Directors' Information:- VIJAY J AND K PRIVATE LIMITED [Strike Off] CIN = U52100GJ1974PTC002504

Company & Directors' Information:- C C SHAH LTD. [Strike Off] CIN = U15421WB2000PLC007659

Company & Directors' Information:- A H SHAH AND CO PVT LTD [Active] CIN = U51311MH1949PTC007019

Company & Directors' Information:- SHAH AND SHAH PVT LTD [Strike Off] CIN = U33112WB1980PTC032838

Company & Directors' Information:- D VIJAY AND COMPANY LIMITED [Dissolved] CIN = U99999MH1933PTC002056

    Case No. Election Petition No. 14 of 2019

    Decided On, 22 July 2020

    At, High Court of Madhya Pradesh

    By, THE HONOURABLE MR. JUSTICE B.K. SHRIVASTAVA

    For the Petitioner: Mansoori Shakeel Ahmad, Advocate. For the Respondents: Mrigendra Singh, Senior Advocate with Lal Hitendra Singh, Navtej Singh Ruprah, Advocates.



Judgment Text


1. This order shall govern the disposal of I.A. No. 8710 of 2019 filed by Respondent No.1 Kunwar Vijay Shah on 16.07.2019 under Order 7 Rule 11 of CPC read with section 86(1) of “Representation of the People Act, 1951” (referred to as “Act 1951”) for dismissal of the Election Petition No.14 of 2019 as not maintainable under section 86 of the Act, 1951 read with Order 7 Rule 11 of CPC.

2. Notification U/s 30 of R.P. Act,1951 was issued by Election Commission for Legislative Assembly election. Voting was held on 28.11.2018 and the result was declared on 11.12.2018. Respondent No.1 Kunwar Vijay Shah, Sponsored by the “Bhartiya Janta Party”, is the returned candidate for Constituency No.176, Harsood, District Khandwa (Received 80556 votes). Petitioner Radheshyam, sponsored by “Gondwana Gantantra Party”, who is the looser in that election (Received only 709 votes), filed main election petition under section 80 read with section 100 of the Act, 1951 on 25.01.2019.

3. As per petitioner, respondent no.1 organized a function of Bhagwat Katha during the period of 26.10.2018 to 01.11.2018 and also celebrated his birthday on 01.11.2018. The Election Code of Conduct was implemented from 14.10.2018 and during the existence of Election Code of Conduct, the aforesaid function was organized by the respondent no.1. Approximate expenditure has been mentioned by the petitioner in Para 11(1) to 11(18). The petitioner also wrote a letter Annexure P- 34 to transfer the officers, who were posted more than 5 years to 25 years. But as the respondent was holding the post of Minister, therefore, he misused his power therefore any employee was not transferred. The information regarding EVM machines was also sought by the petitioner vide Annexure A-35 but the aforesaid information was not given. The respondent no.1 organized the party meeting in the aforesaid Bhagwat Katha function. Therefore, the petitioner filed the petition for declaring :-

(i) the election of respondent no.1 as void and,

(ii) to declare the petitioner as a returned candidate, and

(iii) the respondent no.1 be debarred for 6 years to contest any election.

4. The notice was served upon respondent no.1, then he filed I.A. No.8710 of 2019 on 16.07.2019 under Order 7 Rule 11 of the CPC read with section 86(1) of the Act, 1951. As per respondent, the petition is liable to be dismissed as not maintainable under section 86 of the Act, 1951 read with Order 7 Rule 11 of CPC. The respondent submitted that :-

(i) The election petition has been filed only upon the ground of commission of corrupt practice as stipulated under section 123 of the Act, 1951. The instant petition lacks in material fact constituting the cause of action required under the Act, 1951. The present petition does not fulfill the mandatory requirement of the law. The petition does not contain a concise statement of material fact on which the petitioner relies and therefore does not disclose a triable issue or cause of action. The so called specific allegations of corrupt practice as contained in Para 6 to 17 do not meet out the basic requirement, which could constitute cause of action as required by law. The material facts as to how the information came to the knowledge of the petitioner pertaining to various incidents, as mentioned in the referred paras, is absolutely missing; whereas the same is preliminary requirement for maintainability of the petition. Even the material particulars are absent in the election petition. Thus, it suffers from noncompliance of the provisions contained under 83(1)(b) of the Act, 1951. The averments made in the petition are completely vague and lacking in material particulars. No trial or inquiry is permissible on the basis of such vague, indefinite, imprecise averments. The petition does not disclose a triable issue or cause of action, therefore, liable to be dismissed. Para 11(1) to Para 11(18) deserve to be struck out as they are having no nexus at all with the election in question. In fact the pleadings of the Paras are related to the religious function held with effect from 26.10.2018 to 01.11.2018. However, the petitioner has not disclosed the same as election expenses to the Election Commission.

(ii) The petitioner has not disclosed the source of information upon which the allegations have been leveled in the petition.

(iii) The copy of election petition, served upon the answering respondent, has not been attested by the petitioner under his own signature to be a true copy of the petition.

(iv) The memo of petition bears such attestation, but the documents filed along with the election petition do not bear any such attestation.

(v) Bhagwat Katha commenced with effect from 26.10.2018 to 01.11.2018; whereas the answering respondent submitted his nomination form on 05.11.2018 i.e. after the end of Bhagwat Katha. When the Katha was organized, at that time & up to 03.11.2018, the respondent was not the sponsored candidate of the “Bhartiya Janta Party”. Therefore, no question of disclosing the existence of said Bhagwat Katha, as alleged by the petitioner as election expenses, arises. The Katha was not organized by the respondent. “Chain Biharilal Seva Samiti” organized the aforesaid Katha and the entire expenses were borne by the said committee and not by the answering candidate. Pleading under Para 11(1) to Para 11(18) is scandalous and vexatious, which does not disclose even remote cause of action to launch the election petition.

(vi) The petitioner did not disclose that how the Government officials help the respondent in the election, only vague allegations have been made.

(vii) Petitioner filed an affidavit of Santosh by saying that he is the member of Chain Biharilal Seva Samiti. The respondent filed the affidavit of Chairman of the aforesaid Samiti named Anil Kumar in which it has been stated that Santosh was not the member of the aforesaid Samiti.

5. The petitioner filed the reply of the aforesaid application on 15.10.2019. It is submitted that he disclosed the entire details in his petition. He draws attention towards the Para 1 to Para 19 and said that the sufficient details have been given. The facts, required to be proved by the evidence, are not required to be disclosed in the pleading. The petitioner will prove the entire ground which are raised in the petition. The petitioner complied all provisions at the time of filing the petition. He duly attested and verified the petition. Copy supplied to the respondent was also attested by the petitioner, therefore, the petitioner requested to dismiss the aforesaid interim application.

6. No doubt, the powers of Order 7 Rule 11 can be used in the election petition filed under Act,1951. In Azhar Hussain Vs. Rajiv Gandhi, AIR 1986 S.C. 1253 = 1986 Supp SCC 315, the Apex Court said in para 8 and 9 that Since CPC is applicable, the court trying the election petition can act in exercise of the powers of the Code including Order 6 Rule 16 and Order 7 Rule 11(a). The Court said in Para 8 :-

“8. The argument is that inasmuch as Section 83(1) is not adverted to in Section 86 in the context of the provisions, noncompliance with which entails dismissal of the election. petition, it follows that noncompliance with the requirements of Section 83 (1), even though mandatory, do not have lethal consequence of dismissal. Now it is not disputed that the Code of Civil Procedure (CPC) applies to the trial of an election petition by virtue of section 87 of the Act. Since CPC is applicable, the court trying the election petition can act in exercise of the powers of the Code including Order 6 Rule 16 and Order 7 Rule 11(a).”

7. It will be useful to refer Rule 11 of Order VII of CPC, which is as under:-

“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 undervalued, and the plaintiff, on being required by the Court to 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-paper shall not be extended unless the Court, for reasons to be recorded, is satisfied that the plaintiff was prevent by any cause of exceptional nature for correction the valuation or supplying the requisite stamp-paper, 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.”

8. In T. Arivandandam Petitioner Vs. T. V. Satyapal and another, AIR 1977 S.C. 2421 = (1977) 4 SCC 467, while considering the provision of Order 7 Rule 11 and the duty of the trial court the Apex Court has reminded the trial Judges with the following observation:

“The learned Munsif must remember that if on a meaningful, not formal , reading of the plaint it is manifestly vexatious, and meritless, in the sense of not disclosing a clear right to sue, he should exercise his power under O. VII R. 11, C. P. C. taking care to see that the ground mentioned therein is fulfilled. And, if clear drafting has created the illusion of a cause of action, nip it in the bud at the first hearing by examining the party searchingly under O. X. C.P.C. An activist Judge is the answer to irresponsible law suits. The trial Courts would insist imperatively on examining the party at the first hearing so that bogus litigation can be shot down at the earliest stage. The Penal Code is also resourceful enough to meet such men, (Ch. XI) and must be triggered against them. In this case, the learned Judge to his cost realised what George Bernard Shaw remarked on the assassination of Mahatma Gandhi.” "It is dangerous to be too good."

9. In I.T.C. Ltd. Vs. Debts Recovery Appellate Tribunal [(1998) 2 SCC 70] it was held that the basic question to be decided while dealing with an application filed under Order 7 Rule 11 of the Code is whether a real cause of action has been set out in the plaint or something purely illusory has been stated with a view to get out of Order 7 Rule 11 of the Code.

10. In Saleem Bhai Vs. State of Maharashtra [(2003)1 SCC 557] it was held with reference to Order 7 Rule 11 of the Code that –

“9. ... the relevant facts which need to be looked into for deciding an application thereunder are the averments in the plaint. The trial court can exercise the power at any stage of the suit before registering the plaint or after issuing summons to the defendant at any time before the conclusion of the trial. For the purposes of deciding an application under Clauses (a) and (d) of Rule 11 of Order 7 CPC, the averments in the plaint are germane; the pleas taken by the defendant in the written statement would be wholly irrelevant at that stage,...” (SCC p. 560, para 9).

11. In Sopan Sukhdeo Sable Vs. Asstt. Charity Commr. [(2004) 3 SCC 137] this Court held thus: (SCC pp. 14647, para 15)

“15. There cannot be any compartmentalization, dissection, segregation and inversions of the language of various paragraphs in the plaint. If such a course is adopted it would run counter to the cardinal canon of interpretation according to which a pleading has to be read as a whole to ascertain its true import. It is not permissible to cull out a sentence or a passage and to read it out of the context in isolation. Although it is the substance and not merely the form that has to be looked into, the pleading has to be construed as it stands without addition or subtraction or words or change of its apparent grammatical sense. The intention of the party concerned is to be gathered primarily from the tenor and terms of his pleadings taken as a whole. At the same time it should be borne in mind that no pedantic approach should be adopted to defeat justice on hair splitting technicalities.”

12. In Liverpool & London S.P. & I Assn. Ltd. Vs. M.V. Sea Success I & Anr., (2004) 9 SCC 512, The Court said:-

“139. Whether a plaint discloses a cause of action or not is essentially a question of fact. But whether it does or does not must be found out from reading the plaint itself. For the said purpose, the averments made in the plaint in their entirety must be held to be correct. The test is as to whether if the averments made in the plaint are taken to be correct in their entirety, a decree would be passed.”

13. In Hardesh Ores Pvt. Ltd Vs. M/s. Hede and Co., [With Sociedade de Fomento Industrial Pvt. Ltd Vs. M/s. Hede and Co.] 2007 AIR SCW 3456 = (2007)5 SCC 614, the Apex Court said that whether a plaint discloses a cause of action is essentially a question of fact, but whether it does or does not must be found out from reading the plaint itself. For the said purpose the averments made in the plaint in their entirety must be held to be correct. The test is whether the averments made in the plaint if taken to be correct in their entirety a decree would be passed. The averments made in the plaint as a whole have to be seen to find out whether Cl. (d) of R. 11 of O. 7 is applicable. It is not permissible to cull out a sentence or a passage and to read it out of the context in isolation. Although it is the substance and not merely the form that has to be looked into, the pleading has to be construed as it stands without addition or subtraction of words or change of its apparent grammatical sense.

14. In the case of Karim Bhai Vs. State of Maharashtra & Ors., I.L.R. 2009 M.P. 3167, the Court held that the instances as given in Order VII Rule 11 cannot be regarded as exhaustive of all the cases, in which the Court can reject the plaint or is limiting the inherent powers of the Court in respect thereof. The provisions are procedural and enacted with an aim and object to prevent vexatious and frivolous litigation. The Court also said that it is required to see that the vexatious and frivolous litigation should not be allowed to proceed so as to kill the time of Court for nothing. Where the plaint does not disclose the cause of action, mere writing by the plaintiff that he is having cause of action, would not itself sufficient to hold that plaintiff hasdisclosed the cause of action.

15. Apex Court in The Church of Christ Charitable Trust and Educational Charitable Society, rep. by its Chairman Vs. M/s. Ponniamman Educational Trust rep. by its Chairperson / Managing Trustee, AIR 2012 S.C. 3912 = (2012) 8 SCC 706, observed in para 6 as follows: -

“6....................It is clear from the above that where the plaint does not disclose a cause of action, the relief claimed is undervalued and not corrected within the time allowed by the Court, insufficiently stamped and not rectified within the time fixed by the Court, barred by any law, failed to enclose the required copies and the plaintiff fail to comply with the provisions of Rule 9, the Court has no other option except to reject the same. A reading of the above provision also makes it clear that power under Order VII, Rule 11 of the Code can be exercised at any stage of the suit either before registering the plaint or after the issuance of summons to the defendants or at any time before the conclusion of the trial. This position was explained by this Court in Saleem Bhai and Ors. v. State of Maharashtra and others, (2003) 1 SCC 557 : (AIR 2003 SC 759 : 2003 AIR SCW 174).

16. In paragraph 8 (of AIR) of the Madanuri Sri Rama Chandra Murthy Vs. Syed Jalal, AIR 2017 S.C. 2653 = (2017) 13 SCC 174, the Apex Court has succinctly restated the legal position as follows: -

“8. The plaint can be rejected under Order VII, Rule 11 if conditions enumerated in the said provision are fulfilled. It is needless to observe that the power under Order VII, Rule 11, CPC can be exercised by the Court at any stage of the suit. The relevant facts which need to be looked into for deciding the application are the averments of the plaint only. If on an entire and meaningful reading of the plaint, it is found that the suit is manifestly vexatious and merit -less in the sense of not disclosing any right to sue, the court should exercise power under Order VII, Rule 11, CPC. Since the power conferred on the Court to terminate civil action at the threshold is drastic, the conditions enumerated under Order VII, Rule 11 of CPC to the exercise of power of rejection of plaint have to be strictly adhered to. The averments of the plaint have to be read as a whole to find out whether the averments disclose a cause of action or whether the suit is barred by any law. It is needless to observe that the question as to whether the suit is barred by any law, would always depend upon the facts and circumstances of each case. The averments in the written statement as well as the contentions of the defendant are wholly immaterial while considering the prayer of the defendant for rejection of the plaint. Even when, the allegations made in the plaint are taken to be correct as a whole on their face value, if they show that the suit is barred by any law, or do not disclose cause of action, the application for rejection of plaint can be entertained and the power under Order VII, Rule 11 of CPC can be exercised. If clever drafting of the plaint has created the illusion of a cause of action, the court will nip it in the bud at the earliest so that bogus litigation will end at the earlier stage.”

17. It may be useful to refer para 12 of Azhar Hussain Vs. Rajiv Gandhi, AIR 1986 S.C. 1253 = 1986 Supp SCC 315 in which the Apex Court held that the whole purpose of conferment of powers under this provision is to ensure that a litigation which is meaningless, and bound to prove abortive, should not be permitted to waste judicial time of the court, in the following words :

“12. ….................... The whole purpose of conferment of such powers is to ensure that a litigation which is meaningless and bound to prove abortive should not be permitted to occupy the time of the court and exercise the mind of the respondent. The sword of Damocles need not be kept hanging over his head unnecessarily without point or purpose. Even in an ordinary Civil litigation the Court readily exercises the power to reject a plaint if it does not disclose any cause of action. ”

18. Recently on 09.07.2020 in Civil Appeal No. 9519/2019 (Dahiben Vs. Arvindbhai Kalyanji Bhanusali(Gajra)(D) through LRS & others), the Apex Court considered the provision of Order 7 Rule 11 with the provision of Order 7 Rule 14(A), which is related to the production of documents on which the plaintiff places reliance in his suit, and said in Para 12.4, that the aforesaid documents may also be taken into consideration at the time of deciding the application filed under Order 7 Rule 11(a) of CPC. The Court said as under:-

“Having regard to Order VII Rule 14 CPC, the documents filed alongwith the plaint, are required to be taken into consideration for deciding the application under Order VII Rule 11(a). When a document referred to in the plain, forms the basis of the plaint, it should be treated as a part of the plaint.”

19. Therefore, upon perusal of the provision of Order 7 Rule 11 of CPC and aforesaid pronouncements, it can be said that :-

[i] The provision of Order VII Rule 11 is mandatory in nature. It states that the plaint “shall” be rejected if any of the grounds specified in clause (a) to (e) are made out.

[ii] The power under Order VII Rule 11 CPC may be exercised by the Court at any stage of the suit, either before registering the plaint, or after issuing summons to the defendant, or before conclusion of the trial.

[iii] If the Court finds that the plaint does not disclose a cause of action, or that the suit is barred by any law, the Court has no option, but to reject the plaint.

[iv] The remedy under Order VII Rule 11 is an independent and special remedy, wherein the Court is empowered to summarily dismiss a suit at the threshold, without proceeding to record evidence, and conducting a trial, on the basis of the evidence adduced, if it is satisfied that the action should be terminated on any of the grounds contained in this provision.

[v] The underlying object of Order VII Rule 11 (a) is that if in a suit, no cause of action is disclosed, or the suit is barred by limitation under Rule 11 (d), the Court would not permit the plaintiff to unnecessarily protract the proceedings in the suit. In such a case, it would be necessary to put an end to the sham litigation, so that further judicial time is not wasted.

[vi] At this stage, the pleas taken by the defendant in the written statement and application for rejection of the plaint on the merits, would be irrelevant, and can not be adverted to, or taken into consideration.

[vii] The test for exercising the power under Order VII Rule 11 is that if the averments made in the plaint are taken in entirety, in conjunction with the documents relied upon, would the same result in a decree being passed.

[viii] The averments made in the plaint in their entirety must be held to be correct.

[ix] The averments made in the plaint as a whole have to be seen to find out whether Cl. (d) of R. 11 of O. 7 is applicable. It is not permissible to cull out a sentence or a passage and to read it out of the context in isolation. Documents on which the plaintiff places reliance in his suit, may also be taken into consideration at the time of deciding the application filed under Order 7 Rule 11(a) of CPC.

[x] If on a meaningful reading of the plaint, it is found that the suit is manifestly vexatious and without any merit, and does not disclose a right to sue, the court would be justified in exercising the power under Order VII Rule 11 CPC.

20. It is appropriate to mention hear that the respondent mainly used three points i.e. “absence of concise statement” “lacking in material particulars” and “not discloser of a triable issue or cause of action”. The aforesaid objections are related to election petition, which has been filed by Petitioner before the High Court. Section 81 to 86 of Act, 1951 says :-

“81. Presentation of petitions.—

(1) An election petition calling in question any election may be presented on one or more of the grounds specified in sub-section (1) of section 100 and section 101 to the High Court by any candidate at such election or any elector within forty-five days from, but not earlier than the date of election of the returned candidate, or if there are more than one returned candidate at the election and the dates of their election are different, the later of those two dates.

Explanation.—In this sub-section, "elector" means a person who was entitled to vote at the election to which the election petition relates, whether he has voted at such election or not.

(2)....[Omitted]

(3) Every election petition shall be accompanied by as many copies thereof as there are respondents mentioned in the petition, and every such copy shall be attested by the petitioner under his own signature to be a true copy of the petition.”

“82. Parties to the petition.—A petitioner shall join as respondents to his petition :-

(a) where the petitioner, in addition to claiming a declaration that the election of all or any of the returned candidates is void, claims a further declaration that he himself or any other candidate has been duly elected, all the contesting candidates other than the petitioner, and where no such further declaration is claimed, all the returned candidates; and,

(b) any other candidate against whom allegations of any corrupt practice are made in the petition.”

“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 annexe to the petition shall also be signed by the petitioner and verified in the same manner as the petition.”

“84. Relief that may be claimed by the petitioner.—

A petitioner may, in addition to claiming a declaration that the election of all or any of the returned candidates is void, claim a further declaration that he himself or any other candidate has been duly elected.”

“86. Trial of election petitions.—

(1) The High Court shall dismiss an election petition which does not comply with the provisions of section 81 or section 82 or section 117.

Explanation.—An order of the High Court dismissing an election petition under this subsection shall be deemed to be an order made under clause (a) of section 98.

(2) As soon as may be after an election petition has been presented to the High Court, it shall be referred to the Judge or one of the Judges who has or have been assigned by the Chief Justice for the trial of election petitions under sub-section (2) of section 80A.

(3) Where more election petitions than one are presented to the High Court in respect of the same election, all of them shall be referred for trial to the same Judge who may, in his discretion, try them separately or in one or more groups.

(4) Any candidate not already a respondent shall, upon application made by him to the High Court within fourteen days from the date of commencement of the trial and subject to any order as to security for costs which may be made by the High Court, be entitled to be joined as a respondent.

Explanation.—For the purposes of this sub-section and of section 97, the trial of a petition shall be deemed to commence on the date fixed for the respondents to appear before the High Court and answer the claim or claims made in the petition.

(5) The High Court may, upon such terms as to costs and otherwise as it may deem fit, allow the particulars of any corrupt practice alleged in the petition to be amended or amplified in such manner as may in its opinion be necessary for ensuring a fair and effective trial of the petition, but shall not allow any amendment of the petition which will have the effect of introducing particulars of a corrupt practice not previously alleged in the petition.

(6) The trial of an election petition shall, so far as is practicable consistently with the interests of justice in respect of the trial, be continued from day to day until its conclusion, unless the High Court finds the adjournment of the trial beyond the following day to be necessary for reasons to be recorded.

(7) Every election petition shall be tried as expeditiously as possible and endeavour shall be made to conclude the trial within six months from the date on which the election petition is presented to the High Court for trial.”

117. Security for costs.—

(1) At the time of presenting an election petition, the petitioner shall deposit in the High Court in accordance with the rules of the High Court a sum of two thousand rupees as security for the costs of the petition.

(2) During the course of the trial of an election petition, the High Court may, at any time, call upon the petitioner to give such further security for costs as it may direct.”

21. It appears that Section 83 of the Act deals with contents of petition. Clause (a) of Sub Section 1 of Section 83 provides that an election petition shall contain a concise statement of material facts on which the petitioner relies. Clause (b) of Sub Section 1 of Section 83 further, provides that such an election petition shall set forth full particulars of any corrupt practices that the petitioner alleges, including as full 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. Clause (c) of Sub Section 1 of the Section 83 provides that the election petition shall be signed by the petitioner and verified in the manner laid down in the Code of Civil Procedure, 1908 (v of 1908) for the verification of pleadings. The proviso of Sub Section 1 further mandates 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. Sub Section 2 of Section 83 provides that any schedule or annexure to the petition shall also be signed by the petitioner and verified in the same manner as the petition. Section 86 of the Act deals with trial of election petition. Sub Section 1 of Section 86 specifically provides that the High Court shall dismiss an election petition which does not comply with the provision of Section 81 or Section 82 or Section 117.

22. In Azhar Hussain v. Rajiv Gandhi, AIR 1986 S.C. 1253 = 1986 Supp SCC 315 [25.04.1986] it has been said that the whole purpose of conferment of such powers is to ensure that a litigation which is meaningless and bound to prove abortive should not be permitted to occupy the time of the court election petition can be summarily dismissed if it does not furnish cause of action. Basic facts which constitute the ingredients of the particular corrupt practice alleged by the petitioner must be specified in order to succeed on the charge. The omission of a single material fact would lead to an incomplete cause of action and that an election petition without the material facts relating to a corrupt practice is not an election petition at all. The Court said :-

“11. In view of this pronouncement there is no escape from the conclusion that an election petition can be summarily dismissed if it does not furnish cause of action in exercise of the powers under the Code of Civil Procedure. So also it emerges from the aforesaid decision that appropriate orders in exercise of powers under the Code of Civil Procedure can be passed if the mandatory requirements enjoined by Section 83 of the Act to incorporate the material facts in the election petition are not complied with. This Court in Samant's case (1969) 3 SCC 238 : (AIR 1969 SC 1201) has expressed itself in no unclear terms that the omission of a single material fact would lead to an incomplete cause of action and that an election petition without the material facts relating to a corrupt practice is not an election petition at all. So also in Udhav Singh's case (1977) 1 SCC 311 : (AIR 1977 SC 744) the law has been enunciated that all the primary facts which must be proved by a party to establish a cause of action or his defence are material facts. In the context of a charge of corrupt practice it would mean that the basic facts which constitute the ingredients of the particular corrupt practice alleged by the petitioner must be specified in order to succeed on the charge. 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. All the facts which are essential to clothe the petition with complete cause of action must be pleaded and failure to plead even a single material fact would amount to disobedience of the mandate of, Section 83(1) (a). An election petition therefore can be and must be dismissed if it suffers from any such vice. ............

12. ...................... The whole purpose of conferment of such powers is to ensure that a litigation which is meaningless and bound to prove abortive should not be permitted to occupy the time of the court and exercise the mind of the respondent. The sword of Damocles need not be kept hanging over his head unnecessarily without point or purpose.”

23. In V. Narayanaswamy Vs. C. P. Thirunavukkarasu, AIR 2000 S. C. 694 = (2000) 2 SCC 294 the Apex Court said that Primary responsibility is on petitioner to furnish full particulars of corrupt practice and file petition in full compliance of law, in its absence, petition can be dismissed. No any duty is cast on High Court to sou-motu direct the furnishing of better particulars etc.because if the statute renders any particular requirement mandatory, the Court cannot exercise dispensing powers to waive non-compliance. The Court highlighted "material facts""material particulars" and said :-

"24. It will be thus seen that an election petition is based on the rights, which are purely the creature of statute, and if the statute renders any particular requirement mandatory, the Court cannot exercise dispensing powers 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 disclose a cause of action or a triable issue as such. Sections 31, 83(1)(c) and 86 read with Rule 94-A 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 uphold the preliminary objection and has no option except to dismiss the petition. There is difference between "material facts" and "material particulars". While the 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. ............................................To plead corrupt practice as contemplated by law it has to be specifically alleged that the corrupt practices were committed with the consent of the candidate and that a particular electoral right of a person was affected. It cannot be left to time, chance or conjecture for the Court to draw inference by adopting an involved process of reasoning. Where the alleged corrupt practice is open to two equal possible inferences the pleadings of corrupt practice must fail. Where several paragraphs of the election petition alleging corrupt pratices remain unaffirmed under the verification clause as well as the affidavit, the unsworn allegations could have no legal existence and the Court could not take cognizance thereof. Charge of corrupt practice being quasi-criminal in nature the Court must always insist on strict compliance with the provisions of law. In such a case it is equally essential that the particulars of the charge of allegations are clearly and precisely stated in the petition. 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 dismissal of the petition if the matter falls within the scope of the Order 6, Rule 16 and Order 7, Rule 11 of the Code of Civil Procedure. ..................................Where the petition does not disclose any cause of action it has to be rejected. Court, however, cannot dissect the pleadings into several parts and consider whether each one of them discloses a cause of action. Petition has to be considered as a whole. There cannot be a partial rejection of the petition.

27. Material facts and material particulars certainly connote two different things. Material facts are those facts which constitute the cause of action. In a petition on the allegation of corrupt practices cause of action cannot be equated with the cause of action as is normally understood because of the consequences that follow in a petition based on the allegations of corrupt practices. An election petition seeking a challenge to the election of a candidate on the allegation of corrupt practices is a serious matter, if proved not only that the candidate suffers ignominy, he also suffers disqualification from standing for election for a period that may extend to six years. Reference in this connection may be made to Section 8A of the Act. It was for this purpose that proviso to sub-section (1) of Section 83 was inserted by Act 40 of 1961 (w.e.f. September 20, 1961) requiring filing of the affidavit in the prescribed form where there are allegations of corrupt practice in the election petition. Filing of the affidavit as required is not a mere formality. By naming a document as an affidavit it does not become an affidavit. To be an affidavit it has to conform not only to the form prescribed in substance but has also to contain particulars as required by the Rules.”

24. In Hari Shanker Jain Appellant Vs. Sonia Gandhi, AIR 2001 S.C. 3689 = (2001) 8 SCC 233, the court said that the material facts required to be stated are those facts which can be considered as materials supporting the allegations made. Omission of a single material fact leads to an incomplete cause of action and the statement of claim becomes bad. Material facts would include positive statement of facts as also positive averments of a negative fact, if necessary. 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. The Court said :-

“22. 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 the 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. Balakrishna, etc. v. George Fernandez, (1969) 3 SCR 603; Jitender Bahadur Singh v. Krishna Behari, (1969) 2 SCC 433. 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, (1999) 3 SCC 737, 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 timelimit prescribed for filing the election petition.

23. 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 a 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.”

25. In Harkirat Singh v. Amarinder Singh, AIR 2006 S.C. 713 = (2005) 13 SCC 511, the court said that it is not expected from the High Court to stepped into prohibited area of appreciating the evidence and by entering into 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. The Court tried to give various meanings of "material facts". The relevant paragraph 48 of the said judgment is reproduced as under :-

"The 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."

The Court observed :-

“81. As we have already observed earlier, in the present case, 'material facts' of corrupt practice said to have been adopted by the respondent had been set out in the petition with full particulars. It has been expressly stated as to how Mr. Chahal who was a Gazetted Officer of Class I in the Government of Punjab assisted the respondent by doing several acts, as to complaints made against him by authorities and taking of disciplinary action. It has also been stated as to how a Police Officer, Mr. Mehra, who was holding the post of Superintendent of Police helped the respondent by organizing a meeting and by distributing posters. It was also alleged that correct and proper accounts of election expenses have not been maintained by the respondent. Though at the time of hearing of the appeal, the allegation as to projecting himself as 'Maharaja of Patiala' by the respondent had not been pressed by the learned counsel for the appellant, full particulars had been set out in the election petition in respect of other allegations. The High Court, in our opinion, was wholly unjustified in entering into the correctness or otherwise of facts stated and allegations made in the election petition and in rejecting the petition holding that it did not state material facts and thus did not disclose a cause of action. The High Court, in our considered view, stepped into prohibited area of appreciating the evidence and by entering into 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.

26. In Virender Nath Gautam v. Satpal Singh and Ors., AIR 2007 S.C.581 = (2007)3 SCC 617, the Apex Court defines the expression 'material facts' and said :-

“30. The 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.

33. 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.

34. All '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.”

27. Anil Vasudev Salgaonkar Vs. Naresh Kushali Shigaonkar, 2009 AIR SCW 6812 = (2009)9 SCC 310, it has been said that if the Election petition is filed upon the ground corrupt practices by returned candidate, than facts essential to clothe election petitioner with complete cause of action are "material facts" which must be pleaded. Failure to place even single material fact amounts to disobedience of mandate of S.83(1)(a). Election petition lacking materials facts and not disclosing any cause of action is liable to be dismissed. Court also refereed the Harkirat Singh's case (supra) and said :-

"62. It is settled legal position that all "material facts" must be pleaded by the party in support of the case set up by him within the period of limitation. 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 will entail dismissal of the election petition.

63. The election petition must contain a concise statement of "material facts" on which the petitioner relies. There is no definition of "material facts" either in the Representation of the People Act, 1951 nor in the Code of Civil Procedure. In a series of judgments, this Court has laid down that all facts necessary to formulate a complete cause of action should be termed as "material facts". All basic and primary facts which must be proved by a party to establish the existence of cause of action or defence are material facts. "Material facts" in other words mean the entire bundle of facts which would constitute a complete cause of action.

64. This Court in Harkirat Singh's case (supra) tried to give various meanings of "material facts". .............

65. In the context of a charge of corrupt practice, "material facts" would mean all basic facts constituting the ingredients of the particular corrupt practice alleged, which the petitioner (respondent herein) is bound to substantiate before he can succeed on that charge. It is also well-settled that if "material facts" are missing they cannot be supplied after expiry of period of limitation for filing the election petition and the pleading becomes deficient.

67. The legal position has been crystallized by a series of the judgments of this Court that all those facts which are essential to clothe the election petitioner with a complete cause of action are "material facts" which must be pleaded, and the failure to place even a single material fact amounts to disobedience of the mandate of Section 83(1)(a) of the Act.”

28. In Laxmi Kant Bajpai Vs. Hazi Yaqoob and Ors., 2010 AIR SCW 32 = AIR 2010 SC (Supp) 102 = (2010)4 SCC 81, the Court said that in the absence of material facts and insufficient cause of action, the election petition is liable to be dismissed. The Court observed :-

“28. An election petition has to disclose all the material facts on which the election petitioner relies to establish the existence of a cause of action. Material facts essentially refer to all the relevant facts which an appellant relies upon during the course of the trial. In the absence of material facts and insufficient cause of action, the election petition is liable to be dismissed. There is a catena of cases decided by this Court which have discussed as to what constitutes material facts for the purpose of Section 100 of the Representation of the People Act, 1951.....

“38. ................................The averments also do not disclose any material facts. As observed by the High Court, the main concern of the appellant in effect is the addition of the 21 colonies into the Meerut Constituency and not in relation to addition or deletion of names in the electoral roll. But yet there has been no specific pleading in this regard in the election petition. The pleading should have been with respect to the said inclusion of the 21 colonies into the Meerut Municipality Constituency which was later incorporated into the 381 Meerut Municipality Constituency. In the absence of such pleadings, it can safely be said that the election petition does not disclose any material facts and, therefore, High Court was right in summarily dismissing the election petition.”

29. In C. P. John v. Babu M. Palissery Ors, 2014 AIR SCW 5649 = (2014)10 SCC 545 = 2014 SCC online SC 710, the Apex court said that it is required in the Petition based upon corrupt practice to state material facts and full particulars of corrupt practice because the object is to prevent waste of precious time of elected candidate which otherwise would have been used for public welfare. The Court observed :-

"18. When we read Section 83, the substantive part of Section 83(1) consists of three important elements, namely, that an Election Petition should contain a concise statement of material facts which an election petitioner relies upon. The emphasis is on the material facts which should be stated in a concise form. Under Section 83(1) (b) it is stipulated that the Election Petition should set forth full particulars of any corrupt practice which is alleged by the petitioner. A reading of the said sub-clause 83(1)(b) is to the effect that such particulars should be complete in every respect and when it relates to an allegation of corrupt practice it should specifically state the names of the parties who alleged to have committed such corrupt practice and also the date and place where such corrupt practice was committed. In other words, the particulars relating to corrupt practice should not be lacking in any respect. One who reads the averments relating to corrupt practice should be in a position to gather every minute detail about the alleged corrupt practice such as the names of the persons, the nature of the alleged corrupt practice indulged in by such person or persons, the place, the date, the time and every other detail relating to the alleged corrupt practice.

19. To put it differently, when the Election Petition is taken up for consideration, the Court which deals with such an Election Petition, should be in a position to know in exactitude as to what is the corrupt practice alleged as against the parties without giving any room for doubt as to the nature of such allegation, the parties involved, the date, time and the place etc. so that the party against whom such allegation is made is in a position to explain or defend any such allegation without giving scope for any speculation. In that context, both Sections 83(1)(a) and (1)(b) and the proviso play a very key role since the election petitioner cannot simply raise an allegation of corrupt practice and get away with it, inasmuch as the affidavit to be filed in respect of corrupt practice should specifically support the facts pleaded, as well as, the material particulars furnished. Rule 94-A of the Rules in turn stipulates that the affidavit should be in the prescribed Form 25 and should be sworn before the Magistrate of 1st class or a Notary or the Commissioner of Oaths and makes it mandatory for the election petitioner to comply with the said requirement statutorily. The format of the affidavit as prescribed in Form No. 25 elaborates as to the requirement of specifically mentioning the paragraphs where the statement of facts are contained and also the other paragraphs where material particulars relating to such corrupt practices are alleged. It also mentions as to which of those statement of facts and material particulars are based on the personal knowledge of the election petitioner and such of those statements and particulars that are made based on the information gained by the election petitioner.

20. Therefore, a conspectus reading of Section 83(1)(a) read along with its proviso of the Act, as well as, Rule 94-A and Form No. 25 of the Rules make the legal position clear that in the filing of an Election Petition challenging the successful election of a candidate, the election petitioner should take extra care and leave no room for doubt while making any allegation of corrupt practice indulged in by the successful candidate and that he cannot be later on heard to state that the allegations were generally spoken to or as discussed sporadically and on that basis the petition came to be filed. In other words, unless and until the election petitioner comes forward with a definite plea of his case that the allegation of corrupt practice is supported by legally acceptable material evidence without an iota of doubt as to such allegation, the Election Petition cannot be entertained and will have to be rejected at the threshold. It will be relevant to state that since the successful candidate in an election has got the support of the majority of the voters who cast their votes in his favour, the success gained by a candidate in a public election cannot be allowed to be called in question by any unsuccessful candidate by making frivolous or baseless allegations and thereby unnecessarily drag the successful candidate to the Court proceedings and make waste of his precious time, which would have otherwise been devoted for the welfare of the members of his constituency. Therefore, while deciding the issue raised, we wish to keep in mind the above lofty ideas, with which the provisions contained in Section 83(1) read along with Section 86 came to be incorporated while deciding this appeal."

30. It is submitted by respondent that :-

[i] the election petition has been filed only upon the ground of commission of corrupt practice as stipulated under section 123 of the Act, 1951. The instant petition lacks in material fact constituting the cause of action required under the Act, 1951. The present petition does not fulfill the mandatory requirement of the law.

[ii] The petition does not contain a concise statement of material fact on which the petitioner relies and therefore does not disclose a triable issue or cause of action. The so called specific allegations of corrupt practice as contained in Para 6 to 17 do not meet out the basic requirement, which could constitute cause of action as required by law. Even the material particulars are absent in the election petition.

[iii] The material facts as to how the information came to the knowledge of the petitioner pertaining to various incidents, as mentioned in the referred paras, is absolutely missing; whereas the same is preliminary requirement for maintainability of the petition. Thus, it suffers from non-compliance of the provisions contained under 83(1)(b) of the Act, 1951.

[iv] The averments made in the petition are completely vague and lacking in material particulars. No trial or inquiry is permissible on the basis of such vague, indefinite, imprecise averments.

[v] The petition does not disclose a triable issue or cause of action, therefore, liable to be dismissed.

[vi] Para 11(1) to Para 11(18) deserve to be struck out as they are having no nexus at all with the election in question. In fact the pleadings of the Paras are related to the religious function held with effect from 26.10.2018 to 01.11.2018. However, the petitioner has not disclosed the same as election expenses to the Election Commission.

31. It is stated in Para 4(C) of the application that the copy of election petition, as served upon respondent no.1, has not been attested by the petitioner under his own signature to be a true copy. The aforesaid allegation is not supported by the document itself. The respondent no.1 filed the copy of petition, served upon him, which clearly shows that the petitioner himself attested the entire petition as “true copy” with his signature and seal.

32. Another objection raised by the respondent no.1 that the memo of petition bears such attestation but the documents filed along with the election petition do not bear any such attestation. But this allegation is also not supported by the documents. The petition and the documents show that each and every page has been verified by the petitioner with a note of verification and signature of the petitioner.

33. In Para 14 of the petition, it is mentioned by the petitioner that on 03.11.2018 he made a representation to respondent no.9, regarding transfer of the employees who were posted for more than 5 to 25 years in the Harsood Constituency No.176. As per petitioner, they should be transferred, but respondent by his influence made sure that no employee shall be transferred and accordingly influences the employees to work for his election. It appears from the aforesaid para that name of any employee has been mentioned. The requirement of law mandate to explain the material facts. Neither the name of any employee has been mentioned nor it is mentioned that how those employees effect the election process and how they acted in the election to get the respondent elected. Any details are not given in this regard. The details of employees, who were influenced by the respondent no.1 is not provided in the petition. Therefore, it can be said that the material facts have not been stated by the petitioner in his petition.

34. It is stated in para 16 of application that petitioner on 07.12.2018 sought the information from Chief election officer regarding booth wise issuing and using of the EVM machines with the details of machines found defective with panchna etc. The aforesaid allegation is not complete. He has not furnished any details that how it affects the election of Harsood. Details of any booth has not been mentioned where the machine was found defective and replaced. Therefore, it cannot be treated as a triable issue.

35. The petitioner also mentioned that the respondent no.1 was holding the post of Minister of the State and he misused the position as Minister. The details are missing in the pleading. How the respondent no.1 misused his power and how he influenced the voters by using his capacity as a Minister, is not mentioned in the petition. Therefore, material facts in this regard are also absent in the pleading.

36. It appears from the entire petition that the main allegations of corrupt practice are based upon Bhagwat Katha organized between the period from 26.10.2018 to 01.11.2018. In Para 11(1) to 11(18) the details of expenditure has been mentioned. But this is only a self imaginary calculation and presumption drawn by the petitioner. No any specific source of information has been disclosed. Any document has not been filed/annexed in support of that alligation. It is submitted by the respondent no.1 that the aforesaid Katha was not organized by him, the Chain Biharilal Samiti was the organizer of the aforesaid function. The Petitioner filed an affidavit of Santosh S/o Shankarlal by showing him as a member of Samiti, but the Respondent No.1 also filed the affidavit of “Chairman” of the aforesaid Samiti for showing that the Santosh was not the Member of aforesaid Samiti. It is not clearly mentioned in the petition that how the respondent no.1 influenced the voters by organizing the aforesaid Bhagwat Katha. It is also alleged that Respondent No. 1 spent 50 lacs in the aforesaid religious function. But it appears that the source of the information is not mentioned. How the petitioner came to know about the said fact is missing. It is not clarify that which Government accommodation was used for that purpose. Therefore, primafacie it appears that material facts are missing regarding the expenditure of that function.

37. The question whether the Bhagwat Katha was organized by the respondent no.1 or by the Chain Biharilal Samiti, is the secondary question. The most important question involved in this petition is “whether the Bhagwat Katha organized between the period of 26.10.2018 to 01.11.2018 may be considered as “corrupt practice” adopted by the respondent ?” It is an admitted position that the petitioner was the Minister at that time, but the Election Code of Conduct was implemented since 14.10.2018. The respondent no.1 nominated by the concerned party on 04.11.2018 and he filed his nomination on 05.11.2018. The corrupt practice has been defined in section 123 of the Act, 1951. In section 100 of the Act various grounds have been provided upon which the High Court may set aside the election as void. Relevant part of S.100 says :-

“100. Grounds for declaring election to be void –

(1) Subject to the provisions of sub-section (2) if the High Court is of opinion –

(a) ... ... ...

(b) that any corrupt practice has been committed by a returned candidate or his election agent or by any other person with the consent of a returned candidate or his election agent;

... ...

the High Court shall declare the election of the returned candidate to be void.

.. ... ...”

38. It appears that in relation to the corrupt practice, the word “candidate” has been used in the entire law. When a contestant of the election becomes a candidate?, for this purpose it may be useful to refer some case laws.

39. In Smt. Indira Nehru Gandhi vs. Shri Raj Narain, and Raj Narain v. Smt. Indira Nehru Gandhi, AIR 1975 S.C. 2299, a Five Judges bench of Apex Court held that the returned candidate became candidate only on the date of filing of her nomination paper. Court considers the Corrupt practice contemplated by S. 123 (7),by a 'Candidate', and said that Corrupt practice cannot be committed by any person before he become a 'candidate' for an election. The Court observed that there is nothing to indicate that the word "candidate" in clause (7) of Section 123 has been used merely to identify the person who has been or would be subsequently nominated as a candidate. A definition clause in a statute is a legislative device with a view to avoid making different provisions of the statute to be cumbersome. Where a word is defined in the statute and that word is used in a provision to which that definition is applicable, the effect is that wherever the word defined is used in that provision, the definition of the word gets substituted. Reading the word "candidate" in Section 123 (7) in the sense in which it has been defined as a result of the amendment made by Act 40 of 1975, the only reasonable inference is that the person referred to as a candidate in that clause should be a person who has been or claims to have been duly nominated as a candidate at an election and not one who is yet to be nominated . Court also said there can be no doubt that Section 100 (1) (b), when it speaks of commission of corrupt practice by a returned candidate, it can only mean commission of corrupt practice by a candidate before he became a returned candidate. Any other reading of the sub-section would be absurd. But there is no such compulsion to read the word 'candidate' in Section 123 (7) in the same manner. It is the context that gives colour to a word. A word is not crystal clear. Section 79 of the Act indicates that the definitions therein have to be read subject to the context. The legislature must

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fix some point of time before which a person cannot be a 'candidate' in an election, and a wide latitude must be given to the legislature in fixing that point. It will useful to refer para 146 and 387 :- "146. The 1951 Act uses the expression "candidate" in relation to several offences for the purpose of affixing liability with reference to a person being a candidate. If not time be fixed with regard to a person being a candidate it can be said that from the moment a person is elected he can be said to hold himself out as a candidate for the next election." "387. I would therefore hold that even if it be assumed that the finding of the High Court that the appellant obtained or procured the assistance of Shri Yashpal Kapur during the period from January 7 to 24, 1971, is correct, the appellant shall not be deemed to have committed corrupt practice under Section 123 (7) of the Representation of the People Act, 1951, as she became a candidate only on February 1, 1971. The learned Chief Justice has also dealt with the contention urged by counsel for respondent that Clause 8 (b) of the Election Laws Amendment Act, 1975 suffers from the vice of excessive delegation and is arbitrary. I agree with his reasoning for repelling the same." 40. Again in Subhash Desai v. Sharad J. Rao and others, AIR 1994 S.C. 2277 = 1994 AIR-SCW 2155 = 1994 Supp(2) SCC 446 a Three Judges bench followed the Indira Nehru Gandhi v. Raj Narain, 1975 (Supp) SCC I : (AIR 1975 SC 2299) and said that allegations of Corrupt practice relating to period prior to filing of nomination cannot be taken into consideration for judging legality or validity of election. Court said :- “18. On behalf of the appellant, it was then pointed out that in election petition, while alleging corrupt practices, reference has beer made in respect of the speeches and publications, of period prior to 31-1-1990, which was the date when nomination papers were filed The publications and speeches alleged to have been made prior to 31-1-1990 have to be ignored because the framers of the Act required the High Court to judge the conduct of the candidate, his agent or persons with the consent of the candidate or his election agent, only after a person becomes a candidate for the particular election. A person becomes a candidate for the election in question only after filing the nomination paper. In this connection, reference may be made to Section 79(b) of the Act which defines 'candidate' to mean a person, who has been or claims to have been duly nominated as a candidate at any election. Section 34 of the Act says that a candidate shall not be deemed to be duly nominated for election from a constituency unless he deposits or causes to be deposited the amounts prescribed in the said section. When a person becomes a candidate, was examined by this Court in the well known case of Indira Nehru Gandhi v. Raj Narain, 1975 (Supp) SCC I : (AIR 1975 SC 2299), and it was held (at p. 2334, Para. 146 of AIR): "The 1951 Act uses the expression "candidate" in relation to several offences for the purpose of affixing liability with reference to a person being a candidate. If no time be fixed with regard to a person being a candidate it can be said that from the moment a person is elected he can be said to hold himself out as a candidate for the next election." Recently, this Court in the case of Mohan Rawale v. Damodar Tatyaba alias Dadasaheb, (Special Leave Petition (Civil No.5594 of 1992 disposed of on August 6, 1992), has said : "We hold that all the averments in paragraphs 1 to 20 of the memorandum of election petition in so far as they refer to a period prior to 23-4-1991 cannot amount to allegations of corrupt practice." This cut off date 23-4-1991, was fixed with reference to the date when nomination papers were filed by the appellant concerned, because since that date the appellant will be deemed to have legally acquired the status of a candidate. According to us, any allegation of corrupt practice against the appellant made by the respondent in respect of the period prior to the filing of nomination by the appellant on 31-1-1990, cannot be taken into consideration for judging the legality or validity of his election. [underlined by me] 41. Again another Three Judges bench in Ramakant Mayekar vs. Smt. Celine D'Silva (with three other cases), AIR 1996 S.C. 826 = 1996 AIR-SCW 189 = (1996)1 SCC 399, considered the 'corrupt practice' alleged to be committed through speeches. The Court said that speech given prior to date returned candidate filed his candidature for election cannot form basis for alleged corrupt practice. The Court observed:- “9. As for speeches alleged to have been made on 29-1-1990, it may be stated at the outset that they have to be excluded from consideration since they cannot form the basis of any corrupt practice at the election, inasmuch as they relate to a period prior to the date on which Ramakant Mayekar became a candidate at the election as defined in Section 79(b) of the R.P.Act. This is the settled position in law. [See Subhash Desai v. Sharad J. Rao, 1994 Supp (2)SCC 446 : (1994 AIR SCW 2155); Indira Nehru Gandhi v. Raj Narain, 1975 Supp SCC 1 : (AIR 1975 SC 2299); Mohan Rawale v. Damodar Tatyaba, 1994 (2)SCC 392 : (1994 AIR SCW 2028)]. This was the undisputed position at the hearing of these appeals before us since the speeches made on 29-1-1990 were prior to the date on which Ramakant Mayekar became a candidate at the election. It follows necessarily that the impugned judgment as well as the subsequent notices issued under Section 99 of the R.P. Act, are unsustainable to the extent they are based on the speeches alleged to have been made on 29-1-1990. No further discussion is necessary for holding that part of the impugned judgment dated 5th/6th August, 1991, notices under Section 99 of the R.P.Act and the subsequent order dated 6th January, 1992 as contrary to law and, therefore, liable to be set aside for this reason alone.” 42. Therefore, it is the clear position of the law that a contestant becomes a “candidate” only after filing his nomination for the election. In this case, the respondent no.1 filed his nomination on 05.11.2018; while the Bhagwat Katha was organized before the aforesaid date during the period of 26.10.2018 to 01.11.2018. For the sake of arguments, if we presume that the Katha was organized by respondent no.1, then it may be said that the aforesaid act cannot be considered as 'corrupt practice' adopted by him, because during the aforesaid period, he was not the 'candidate' of the election. He became the candidate only on 05.11.2018. 43. Therefore, in the light of aforesaid observation, it appears that material facts have not been stated by the petitioner in his petition. No triable issue has been found. The petition based upon the so called “corrupt practice” adopted during the period 26.10.2018 to 01.11.2018, is not tenable because during that period, the respondent was not the “candidate” as he filed his nomination after the aforesaid period on 05.11.2018. 44. Hence, I.A. No. 8710/2019 is allowed. As a result, the Election Petition No. 14 of 2019, filed by the petitioner is dismissed as not maintainable. Both parties shall bear their own costs.
O R







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