Nandiesha Reddy vs Kavitha Mahesh

and 86 of the Representation of the People Act,

1951 (hereinafter to be referred to as `the Act')

read with Order VII Rule 11 of the Code of Civil

Procedure, 1908 for dismissal of the election

petition. The Karnataka High Court by the

impugned orders dated 8th October, 2009 and

12th November, 2009 dismissed the aforesaid

applications.

2. The Returned Candidate assails aforesaid

orders in the present Special Leave Petitions.

3. Leave granted.

4. Short facts giving rise to the present

appeals are that the Election Commission of India

on 16th of April, 2008 notified its intention to

hold General election to the Karnataka State

3

Legislative Assembly and announced the election

schedule. According to the schedule, the last

date for submission of the nomination was 23rd of

April, 2008 whereas the scrutiny of the

nomination papers was to be undertaken on 24th of

April, 2008. The date of election fixed was 10th

of May, 2008. Kavitha Mahesh (hereinafter

referred to as `the Election Petitioner') was an

electorate in the combined Varthur Assembly

Constituency prior to de-limitation. After de-

limitation the said constituency has been split

into three constituencies, namely (i)

Mahadevapura (ii) C.V.Raman Nagar and (iii)

K.R.Pura. After the de-limitation, the Election

Petitioner's name appeared in the electoral roll

of C.V.Ramana Nagar Constituency. In order to

contest the election from K.R.Pura Assembly

Constituency, according to the Election

Petitioner, on 19th of April, 2008 she obtained a

set of nomination forms from the Returning

Officer. It is her case that on 23rd of April,

2008 at about 2.00 P.M. she delivered the

4

nomination papers together with all annexures to

the Returning Officer and requested him to

furnish the latest electoral roll of K.R.Pura

Assembly Constituency in order to extract the new

part number and serial number of the proposers

who had signed on the nomination papers for

incorporating the same in the appropriate column

against their respective names. It is alleged

that the Returning Officer instead of furnishing

the latest electoral roll of K.R.Pura Assembly

Constituency, asked the Election Petitioner to

approach the Revenue Office to obtain those

details. It has specifically been averred by the

Election Petitioner that she went to the Revenue

Office but could not get those details from the

Revenue Officer and therefore, she went to file

the nomination papers, presented the same before

the Returning Officer but it was not received. It

is her allegation that, thereafter, she attempted

to give a handwritten representation to the

Returning Officer but the same was also not

accepted. Hence she left the place without

5

filing the nomination. It is also her allegation

that on 28th of April, 2008, she filed a complaint

in this regard before the Chief Election

Commissioner.

5. The election was held on 10th of May, 2008

and its result was published on 27th of May, 2008

in which the Returned Candidate was declared

elected from K.R.Pura Assembly Constituency.

This was challenged by the Election Petitioner in

an election petition before the Karnataka High

Court. The Election of the Returned Candidate

was sought to be declared null and void on the

ground of illegal rejection of nomination paper

at threshold by the Returning Officer.

6. As usual, the Returned Candidate filed

applications for striking out various paragraphs

from the election petition. This was registered

as Misc. Civil No. 15204 of 2009. Another

application for dismissal of the election

petition was filed which was registered as Misc.

Civil No. 15772 of 2009. In this application it

6

was pointed out that as the Election Petitioner

was not a candidate set up by any recognised

political party, for valid nomination according

to first proviso of Section 33 (1) of the Act the

nomination paper was required to be subscribed by

ten electors of the constituency. It was further

pointed out that the Election Petitioner shall

not be deemed to be duly nominated for election

from the constituency as she had not made any

deposit as required under Section 34 of the Act.

The Returned Candidate further alleged non-

compliance of Section 81(3) of the Act and

contended that he has not been furnished with the

true attested copy of the election petition and

its annexures as presented to the Court. The

Returned Candidate also sought dismissal of the

election petition on the ground that the same did

not contain concise statement of the material

facts on which the Election Petitioner relied and

the material facts averred did not disclose any

cause of action for the relief sought for.

7

7. All these pleas raised by the Returned

candidate were considered and have been overruled

by the High Court by the impugned orders. While

rejecting the application (Civil Misc. No. 15204

of 2009) for striking out the pleading from the

election petition by order dated 8th October,

2009, the High Court observed as follows:

"53. It is for this reason, I am of the view that the pleadings in the petition does not warrant striking off and assuming that some pleadings are really not necessary, ultimately if the retaining or permitting the pleading to exist does not result in any prejudice or embarrassment to the respondent and at any rate, if at all there being certain complaint or allegation against the returning officer and his failure to adhere to the duties in terms of the statutory provisions and that being a relevant plea in the context of wrongful rejection of a nomination paper, I am of the view that there is no occasion to strike out the pleadings as is sought to be made out in the application."

8. The High Court rejected Civil Misc. No. 15772

of 2009 by order dated 12th of November, 2009 and

while considering the plea that the averments in

8

the election petition did not disclose any cause

of action for granting the relief in terms of the

prayer the High Court observed as follows:

" 55. Whether the nomination as was delivered to the returning officer by the petitioner as a candidate at 1400 hours on 23-4-2088 in fact, did amount to a valid nomination within the scope of the provisions of Section 33 or not, is not a question that surfaces itself for examination at this stage, but later and for the purpose of applying the drastic penal provision of Order VII Rule 11(a) CPC, we have to necessarily accept the plea at its face value and not by seeking for further elaboration or for the proof for the same.

56. ............. in my considered opinion, the petition averments contain sufficient plea to disclose a cause of action and for granting relief in terms of the prayer. It is, therefore, in my opinion, that the election petition cannot be dismissed on the application [filed by the respondent- returned candidate] applying the test of the provisions of Order VII Rule 11 (a) CPC."

9. As regards the plea of non-deposit as

required under Section 34 of the Act, the High

Court observed as follows:

" 105. Responding to this contention, petitioner has submitted that while the deposit is a requirement

9

in law, a deposit can be made till the last moment; that there was still time for presenting the nomination paper, that when the petitioner attempted to present the nomination paper, time for presentation had not yet come to an end; that even assuming that there was no deposit, it was the bounden duty of the returning officer to point out the requirement of deposit fee and enable the candidate to arrange for deposit and it is only thereafter if the deposit is not made before the expiry of time of filing of nomination, then alone, the provisions of Section 34 of the Act can be said to come into play; that the provisions of sub-section (4) of Section 36 of the Act takes care of the situation and such a situation will arise only when the returning Officer having consciously and deliberately avoided even scrutinizing the nomination papers, by not even receiving the nomination paper, the argument is only hypothetical and is of no consequence in determining the validity of the election petition nor the validity of the nomination paper.

106. I have bestowed my attention to the submission made at the bar and I find that the argument is really hypothetical, particularly as the returning officer had not even cared to look into the nomination paper, as was presented by the petitioner-candidate or on her behalf by her supporters."

As regards the plea of the Returned Candidate

that the Election Petitioner did not furnish the

copy of the election petition and its annexures

10

as was presented to the Court and that the copies

were not duly attested, the High Court answered

the same in the following words:

". . . What had been filed as election petition and annexures with the registry at the time of initial presentation have all been, without dispute, furnished to the respondent. Even a discrepancy with regard to the so-called index, which has to be construed as a list of documents, in my considered opinion, does not make any difference for the understanding of the contents of the petition and the manner in which the election petitioner has sought for relief in the election petition and the grounds and materials relied upon by the petitioner, as copies of all original documents are provided to the respondent and even on a comparative perusal of the papers in the court, with the copies as received by the respondent-returned candidate made available by the learned counsel for the respondent, I do not find any additional papers having been filed by the petitioner copies of which are not made available to the respondent in the sense, which can make a material difference to the respondent to understand the precise case of the petitioner, which is not given by the election petitioner and therefore I am of the view that this is not a situation warranting dismissal of the election petition under Section 86 of the Act, on the premise of non- compliance with the requirement of the provisions of Section 81 of the Act."

11 The Returned Candidate's pleas that the

election petition does not contain concise

statement of material facts as contemplated under

Section 83 (1) of the Act and has not been

verified in the manner as laid down under Order

VI Rule 15 (1) of the Act have also been rejected

by the High Court. The High Court reproduced the

verification in its impugned judgment and found

the same to be in three parts and observed as

follows:

"......... part-I is within the knowledge of the petitioner, para-II based on the information and belief and part-III on the information that the petitioner believes to be true etc. In my considered view, the verification even as it stands as of now, and with reference to the manner of presentation of the petition and having trifurcated or separated the petition to parts, sufficiently and in substantial manner complies with the requirement of verification, In terms of clause

-c of sub-section (1) of Section 83 of the Act and therefore this argument cannot be one to reject the election petition at the threshold, on the premise that certain requirements in law are not fulfilled."

12 10. Mr. Dushyant Dave, learned Senior Counsel

appearing on behalf of the appellant points out

that from the averments in the election petition

it is apparent that Election Petitioner was not a

candidate set up by a recognised political party

and her nomination was not subscribed by 10

electors.Accordingly he submits that the Election

Petitioner cannot be considered to be a candidate

so as to maintain the election petition. He

draws our attention to the first proviso of

Section 33 of the Act and points out that for a

valid nomination it has to be subscribed by 10

electors. In support of the submission learned

counsel for the appellant relies on a

Constitution Bench judgment of this Court in the

case of Mithilesh K. Sinha v. Returning Officer

for Presidential Election 1993 Supp. (4) SCC 386

and our attention is drawn to paragraphs 30 and

31 of the judgment which read as under:

" 30. To be entitled to present an election petition calling in question an election, the petitioner should have been a `candidate' at such election within the meaning of Section 13(a) for

13

which he should have been "duly nominated as a candidate" and this he cannot claim unless the mandatory requirements of Section 5-B(1)(a) and Section 5-C were complied by him. Where on undisputed facts there was non- compliance of any of these mandatory requirements for a valid nomination, the petitioner was not a `candidate' within the meaning of Section 13(a) and, therefore, not competent according to Section 14-A to present the petition.

31. It is also settled by the decisions of this Court that in order to have the requisite locus standi as a `candidate' within the meaning of Section 13(a) for being entitled to present such an election petition in accordance with Section 14-A of the Act the petitioner must be duly nominated as a candidate in accordance with Section 5-B(1)(a) and Section 5-C. Unless it is so the petitioner cannot even claim to have been duly nominated as a candidate at the election as required by Section 13(a). The above conclusion in respect of the nomination paper of the petitioner, Mithilesh Kumar Sinha, from the facts set out by him in the petition, stated by him at the hearing and evident from the documents filed by him makes it clear that the petitioner, Mithilesh Kumar Sinha, has no locus standi to challenge the election of the returned candidate, Dr Shanker Dayal Sharma as he is not competent to present the election petition in accordance with Section 14-A of the Act read with Order 39 Rule 7 of Supreme Court Rules. Even otherwise the ground under Section 18(1)(c) of the Act of

14

wrongful rejection of his nomination paper urged in the election petition does not give rise to a triable issue on the above facts and the irresistible conclusion therefrom. The material facts to make out a prima facie case of existence of that ground are lacking in the pleadings and squarely negatived by petitioner's own statement."

Reliance has also been placed on a decision

of this Court in the case of Pothula Rama Rao v.

Pendyala Venakata Krishna Rao (2007) 11 SCC 1 and

reference has been made to paragraphs 7 and 8 of

the judgment which read as follows:

"7. The first respondent was the official candidate of TDP, as he was issued the B-Form by TDP. Atchuta Ramaiah's nomination was not subscribed by 10 proposers but by only one proposer. The nomination of Atchuta Ramaiah was rejected by the Returning Officer, not on the ground that he was a "dummy candidate" but because his nomination was not subscribed by ten voters of the constituency, and thus there was non- compliance with the first proviso to Section 33(1). The rejection is under sub-section (2)(b) of Section 36 which provides for rejection of any nomination on the ground that there has been a failure to comply with provision of Section 33 or Section 34.

8. If an election petitioner wants to put forth a plea that a nomination was improperly rejected, as a ground for

15

declaring an election to be void, it is necessary to set out the averments necessary for making out the said ground. The reason given by the Returning Officer for rejection and the facts necessary to show that the rejection was improper, should be set out. If the nomination had been rejected for non-compliance with the first proviso to sub-section (1) of Section 33, that is, the candidate's nomination not being subscribed by ten voters as proposers, the election petition should contain averments to the effect that the nomination was subscribed by ten proposers who were electors of the constituency and therefore, the nomination was valid. Alternatively, the election petition should aver that the candidate was set up by a recognised political party by issue of a valid B-Form and that his nomination was signed by an elector of the constituency as a proposer, and that the rejection was improper as there was no need for ten proposers. In the absence of such averments, it cannot be said that the election petition contains the material facts to make out a cause of action."

11. Election Petitioner appears in person. She

submits that her nomination paper was subscribed

by ten electors of the Constituency and presented

before the Returning Officer but the same was not

accepted. We have bestowed our consideration to

the rival submissions. The Election Petitioner,

16

in the election petition, has stated that she had

"obtained TEN PROPOSERS signatures in Part II of

Annexure `A' together with their true copies of

their Elector Photo Identity Cards". Her further

plea in the election petition is that "as per the

given new part number, when we checked for the

names of the proposers in the concerned Electoral

Roll, their names were not found". The relevant

pleadings in this regard are at paragraphs 9, 10

and 11 of the election petition and we deem it

expedient to reproduce the same as under:

"9. It is most respectfully submitted that the petitioner on realizing the time factor to submit the nomination before the 4th respondent by 1500 hours and since the day being the last day for filing nomination papers, has presented her nomination papers together with all necessary enclosures before the 4th Respondent with sole intention to comply the requirements of new part number and serial number in respect of the proposers at the time of scrutiny of nomination paper, which is scheduled for next day the 24th April, 2008 wherein a clear 24 hours time would be available before the Petitioner to make good the requirements in her nomination paper. The petitioner also explained the reason and the actual position prevailing in the revenue office and also requested the 4th respondent to

17

receive her nomination paper and allow time till scrutiny to comply the requirement whatsoever.

10. It is most respectfully submitted that to the petitioners surprise the 4th respondent spontaneously reacted and commented "I do not want to listen to all your stories and I will not receive your nomination paper without complying with the requirement of new part number and serial number against the proposers in Part-II of Annexure `A' and if you compel me to receive now and tomorrow I will reject it". At that point of time the petitioner on realizing the language of the 4th respondent, his uncalled for, unwarranted comments, which clearly indicated pre-determined ulterior motive, has decided to submit the nomination paper together with a written representation addressed to Respondent No. 4, requesting him to receive the petitioners nomination papers, since true copies of Elector Photo Identity Cards issued prior to delimitation duly self attested by the respective proposers and true copy of enumeration details are being enclosed to prove the identity, address and authenticity of the proposers beyond any doubt. The Representation handwritten by the Petitioner and typed copy is marked as Annexure-`P', and requested him for time till scrutiny for complying with the requirements whatsoever as per law.

11. It is most respectfully submitted that the Respondent No. 4 once again reacted in the same manner and bluntly refused to receive petitioner's nomination papers and further adding insult to injury, he has commented "I

18

will not receive your nomination paper or your representation or acknowledge any receipt and continued to say "for your negligence you cannot blame other people". The petitioner on observing 4th respondents illegal and improper rejection in violation of statutory law and election commission's guidelines, was left with no option but to presume the existence of prejudice and predetermined ulterior motive behind the fourth respondents illegal attitude and misuse of power. As such the petitioner left the premises humiliated, insulted by the illegal and improper rejection of her nomination paper by none other than a responsible neutral official like Returning Officer."

12. From a plain reading of these averments it is

evident that the Election Petitioner has averred

that nomination paper was signed by 10 electors.

It was delivered to the Returning Officer with a

request to make available latest electoral roll

of K.R. Pura Constituency for filling up the new

part number and serial number of the proposers in

the respective columns. However, the Returning

Officer stated that he is not in possession

thereof and asked the Election Petitioner to

approach the revenue office located at the ground

floor for verifying and extracting the part

19

number and serial number of the proposers.

Attempts made on behalf of the Election

Petitioner to get those details from the revenue

office were rendered futile. Thereafter, the

Election Petitioner approached the Returning

Officer again for delivering the nomination paper

with the explanation. It did not yield any result

and the Returning Officer stated that he "will

not receive your nomination paper without

complying the requirement of new part number and

serial number against the proposers in Part-II of

Annexure `A' and if you compel me to receive now,

tomorrow I will reject it". These averments at

this stage have to be accepted as true and,

therefore, the question is as to whether Election

Petitioner can be said to be a candidate so as to

maintain the election petition and further the

Returning Officer was right in refusing to accept

the nomination paper on the purported ground that

it did not contain the serial number and part

number of the proposers. Section 81 of the Act

inter alia provides for presentation of election

20

petition. It reads as follows:

"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.

1. * * * * *

[(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.]"

13. From a plain reading of the aforesaid

provision it is evident that an election petition

calling in question any election can be presented

by any candidate at such election. Candidate, in

our opinion, would not be only such person whose

nomination form has been accepted for scrutiny or

21

whose name appears in the list of validly

nominated candidate, that is to say, candidates

whose nominations have been found valid. Here,

in the present case, the Election Petitioner's

plea is that the Returning Officer declined to

accept the nomination paper. We are of the

opinion that when a nomination paper is presented

it is the bounden duty of the Returning Officer

to receive the nomination, peruse it, point out

the defects, if any, and allow the candidate to

rectify the defects and when the defects are not

removed then alone the question of rejection of

nomination would arise. Any other view, in our

opinion, will lead to grave consequences and the

Returning Officers may start refusing to accept

the nomination at the threshold which may ensure

victory to a particular candidate at the

election. This is fraught with danger, difficult

to fathom. Section 33(4) of the Act casts duty

on a Returning Officers to satisfy himself that

the names and the electoral roll numbers of the

candidates and their proposers as entered in the

22

nomination paper are the same as in the electoral

rolls and, therefore, in our opinion, the

Election Petitioner for the purpose of

maintaining an election petition shall be deemed

to be a candidate.

14. As regards failure to subscribe the

nomination papers by 10 electors as required

under the first proviso to Section 33 of the Act,

the plea of the Election Petitioner is that it

was so subscribed. Whether in fact was done or

not is a matter of trial and at this stage we

have to proceed on an assumption that the

averments made in the election petition are true.

There is clear averment in the election petition

that nomination paper was subscribed by 10

electors. In the face of aforesaid there is no

escape from the conclusion that the Election

Petitioner shall be deemed to be a candidate and

entitled to challenge the election of the

Returned Candidate.

15. Now we revert to the authority of this Court

in the case of Mithilesh K. Sinha (supra). In

23

the said case election of the President was

challenged and it was found that the subsequently

delivered nomination paper filed by the

petitioner of the said case was not subscribed by

at least ten electors as proposers and at least

ten electors as seconders as required by Section

5(B)(1)(a) of the Presidential and Vice-

Presidential Elections Act, 1952 and in that

background it was held that he was not a

candidate competent to present the petition. Here, in the present case, as stated earlier, the

Election Petitioner has averred that her

nomination was subscribed by ten electors and

that averment at this stage has to be treated as

correct and, therefore, this distinguishes the

case in hand from the case of Mithilesh K.

Sinha (supra).

16. In the case of Pothula Rama Rao (supra) the

Election Petitioner's averment was that his

nomination was rejected on the untenable ground

that he was a dummy or substitute candidate set

up by the TDP. However, there was no averment

24

that he was set up as a candidate by TDP in the

manner contemplated in paragraph 13 of the

Symbols Order, that is, by issuing a valid B-Form

in his favour. Nor did the election petition

aver that his nomination paper was subscribed by

ten electors. In the face of it this Court came

to the conclusion that the election petition was

lacking in material facts necessary to make out a

cause of action. Here, in the present case, as

stated earlier, the Election Petitioner has

clearly averred that his nomination was

subscribed by ten electors and presented before

the Returning Officer but the same was not

received and rejected. Thus one of the grounds

for declaring the election to be void as provided

under Section 100(1)(c) of the Act was

specifically pleaded. Thus, the decision of this

Court in the case of Pothula Rama Rao (supra) in

no way supports the plea of the appellants.

17. Mr. Dushyant Dave, then contends that the

Election Petitioner has nowhere averred that he

had made the deposit as required under Section 34 25

of the Act. According to him Election Petitioner

shall not be deemed to be duly nominated for

election unless he deposits the amount provided

therein. In answer thereto Election Petitioner

submits that the deposit as contemplated under

Section 34 of the Act can be made till the time

of scrutiny of the nomination. According to her

after accepting the nomination it was the bounden

duty of the Returning Officer to point out the

requirement of deposit and enable the candidate

to arrange for deposit and it is only thereafter

if the deposit is not made, the nomination can be

rejected.

18. We have considered the rival submissions and

we find substance in the submission of Mrs.

Mahesh. We are of the opinion that there was

still time left for presenting the nomination

paper and in case the same would have been

accepted for scrutiny, the Election Petitioner

could had made deposit within the time. It is

only after expiry of the time had the Election

26

Petitioner not made the deposit, the nomination

was liable to be rejected.

19. Mr. Dushyant Dave, lastly submits that the

election petition does not contain material facts

and on this ground alone the election petition

deserves to be rejected at the threshold.

Reliance has been placed on a decision of this

Court in the case of Anil Vasudev Salgaonkar v.

Naresh Kushali Shigaonkar, (2009) 9 SCC 310 and

our attention has been drawn to paragraph 50 of

the judgment which reads as follows:

"50. The position is well settled that an election petition can be summarily dismissed if it does not furnish the cause of action in exercise of the power under the Code of Civil Procedure. Appropriate orders in exercise of powers under the Code 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."

Yet another decision on which reliance is

placed is the decision of this Court in the case

of Ram Sukh v. Dinesh Aggarwal (2009) 10 SCC 541

27

and our attention has been drawn to paragraphs 24

and 25 of the judgment which read as follows:

"24. It needs little reiteration that for the purpose of Section 100(1)(d)(iv), it was necessary for the election petitioner to aver specifically in what manner the result of the election insofar as it concerned the first respondent was materially affected due to the said omission on the part of the Returning Officer. Unfortunately, such averment is missing in the election petition.

25. In our judgment, therefore, the Election Tribunal/High Court was justified in coming to the conclusion that statement of material facts in the election petition was completely lacking and the petition was liable to be rejected at the threshold on that ground. We have, therefore, no hesitation in upholding the view taken by the High Court. Consequently, this appeal, being devoid of any merit, fails and is dismissed accordingly. Since the first respondent remained unrepresented, there will be no order as to costs."

20. Mrs. Mahesh has taken us through the

averments made in the election petition including

the paragraphs which we have reproduced in the

preceding paragraphs of this judgment and

contends that the election petition does contain

a concise statement of material facts on which

28

she had relied seeking the relief of declaration

of the election of the Returned Candidate to be

void.

21. We have considered the submission and the

submission advanced by Mrs. Mahesh commend us.

It is trite that if an Election Petitioner wants

to put forth a plea that a nomination was

improperly rejected to declare an election to be

void it is necessary to set out the averments for

making out the said ground. The reason given by

the Returning Officer for refusal to accept the

nomination and the facts necessary to show that

the refusal was improper is required to be set

out in the election petition. In the absence of

the necessary averments it cannot be said that

the election petition contains the material facts

to make out a cause of action. Section 83(1)(a)

inter alia provides that an election petition

shall contain a concise statement of the material

facts. Further, Section 87 of the Act provides

that subject to the provisions of the Act and the

Rules framed thereunder every election petition

29

shall be tried in accordance with the procedure

applicable under the Code of Civil Procedure to

the trial of suits. Order VI of the Code of

Civil Procedure is devoted to the pleadings

generally and Rule 2(i) thereof, inter alia,

provides that every pleading shall contain

statement in a concise form all the material

facts on which the party pleading relies for

claim. In an election petition, which does not

contain material facts, no relief can be granted.

The phrase `material fact' as used in Section

83(1)(a) of the Act or Order VI Rule 2 of the

Code of Civil Procedure has not been defined in

the Act or the Code of Civil Procedure. In our

opinion all specific and primary facts which are

required to be proved by a party for the relief

claimed are material facts. It is settled legal

position that all material facts must be pleaded

by the party on which the relief is founded. Its

object and purpose is to enable the contesting

party to know the case which it has to meet. An

election petition can be summarily dismissed if

30

it does not furnish the material facts to give

rise to a cause of action. However, what are the

material facts always depend upon the facts of

each case and no rule of universal application is

possible to be laid down in this regard.

22. Bearing in mind the aforesaid legal position

when we proceed to consider the facts of the

present case we are of the opinion that the

Election Petitioner had disclosed material facts

and the matter is fit to go for trial. Whether

those material facts are true or false is a

matter of trial. As regards authorities of this

Court in the case of Anil Vasudev Salgaonkar

(supra) and Ram Sukh (supra) we are of the

opinion that the same do not lend support to the

contention of the appellant. In both the cases

this Court on fact came to the conclusion that

the election petition did not contain statement

of material facts and accordingly the election

petitions were dismissed at the threshold.

However, in the present case, on facts we have

found that the election petition does contain

31

material facts and it is not liable to be

dismissed at the threshold.

23. Any observation made by us in this judgment

is for the purpose of disposal of these appeals

and shall have no bearing at the final decision

of the election petition.

24. Accordingly, we dismiss both the appeals with

costs of Rs.25,000/- to be paid by the appellant

to the respondent.

..................J (HARJIT SINGH BEDI)

......................J (CHANDRAMAULI KR. PRASAD)

New Delhi, July 8, 2011.