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TMI Blog2009 (9) TMI 1062X X X X Extracts X X X X X X X X Extracts X X X X ..... ted. The appellant (hereinafter referred to as the `election petitioner') having lost the election, as a candidate of the Nationalist Congress Party, challenged the election of the first respondent by filing an election petition under Section 80 read with Section 100(1)(b) and (d) of the Act. The election of the returned candidate was challenged mainly on the grounds: (i) that the election petitioner having submitted 2 sets of the requisite Form-8 (Praroop-8) in respect of his election agent Manbir Singh Dagur before the Returning Officer, who having obtained the signatures of the election petitioner as also of the polling/election agent in proforma (Anulagnak-22), deliberately did not send the signed Anulagnak-22 of the election petitioner to different polling stations, with the result that his polling agent was not permitted by the polling officer to act as such on the date of polls; (ii) that the Returning Officer deliberately delayed the distribution of Anulagnak-22 at various polling stations and on account of inaction on his part, election petitioner's supporters got confused and either did not vote or voted in favour of the first respondent, an Indian National ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... lacking and mandatory requirement of an affidavit in support of the allegations of corrupt practices was also not complied with. Relying on the decision of this Court in Ravinder Singh Vs. Janmeja Singh Ors. 2000 (8) SCC 191, the High Court came to the conclusion that non-filing of affidavit in support of the allegation of corrupt practices, is an incurable and fatal defect and, therefore, the election petition was liable to be rejected on that ground as well. Aggrieved, the election petitioner is before us in this appeal. 5. In spite of service, the first respondent - the elected candidate has not entered appearance. Therefore, we heard learned counsel appearing on behalf of the election petitioner. 6. It was submitted by learned counsel for the election petitioner that the High Court has committed an error of law as well as of procedure in entertaining first respondent's application and dismissing the election petition at the threshold. It was contended that the question whether material facts , as contemplated in Section 83 of the Act, had been stated or not, cannot be decided without providing an opportunity to the election petitioner to prove his case upon trial. ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... aw or by indulging in corrupt practices, as enumerated in the Act. 8. In this backdrop, we may now turn to the procedural provisions in the Act insofar as they are relevant for our purpose:- 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. ***** (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. 83. Contents of petition.--(1) An election petition ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... culars 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. 87. Procedure before the High Court.--(1) Subject to the provisions of this Act and of any rules made thereunder, every election petition shall be tried by the High Court, as nearly as may be, in accordance with the procedure applicable under the Code of Civil Procedure, 1908 (5 of 1908) to th ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... , could it be dismissed summarily without trial? 11. As already noted, it is mandatory that all material facts are set out in an election petition and it is also trite that if material facts are not stated in the petition, the same is liable to be dismissed on that ground alone. Therefore, the question is as to whether the election petitioner had set out material facts in his petition? 12. The phrase material facts has neither been defined in the Act nor in the Code and, therefore, it has been understood by the courts in general terms to mean the entire bundle of facts which would constitute a complete cause of action. In other words, material facts are facts upon which the plaintiff's cause of action or defendant's defence depends. (See: Mahadeorao Sukaji Shivankar Vs. Ramaratan Bapu Ors. (2004) 7 SCC 181 ). Broadly speaking, all primary or basic facts which are necessary either to prove the cause of action by the plaintiff or defence by the defendant are material facts . Material facts are facts which, if established, would give the petitioner the relief asked for. But again, what could be said to be material facts would depend upon the facts of each case ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... Virender Nath Gautam Vs. Satpal Singh Ors. (2007) 3 SCC 617 , wherein C.K. Thakker, J., stated thus: (SCC p.631, para 50) 50. There is distinction between facta probanda (the facts required to be proved i.e. material facts) and facta probantia (the facts by means of which they are proved i.e. particulars or evidence). It is settled law that pleadings must contain only facta probanda and not facta probantia. The material facts on which the party relies for his claim are called facta probanda and they must be stated in the pleadings. But the facts or facts by means of which facta probanda (material facts) are proved and which are in the nature of facta probantia (particulars or evidence) need not be set out in the pleadings. They are not facts in issue, but only relevant facts required to be proved at the trial in order to establish the fact in issue. 16. Now, before examining the rival submissions in the light of the aforestated legal position, it would be expedient to deal with another submission of learned counsel for the appellant that the High Court should not have exercised its power either under Order VI Rule 16 or Order VII Rule 11 of the Code to reject the election pe ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... y the High Court as nearly as may be in accordance with the procedure applicable under the Code of Civil Procedure, 1908, to the trial of suits. A suit which does not furnish cause of action can be dismissed. 18. The issue was again dealt with by this Court in Azhar Hussain Vs. Rajiv Gandhi (1986 (Supp) SCC 315 . Referring to earlier pronouncements of this Court in Samant N. Balkrishna (supra) and Udhav Singh Vs. Madhav Rao Scindia (1977) 1 SCC 511 wherein it was observed that the omission of a single material fact would lead to incomplete cause of action and that an election petition without the material facts is not an election petition at all, the Bench held that all the facts which are essential to clothe the petition with complete cause of action must be pleaded and omission of even a single material fact would amount to disobedience of the mandate of Section 83(1)(a) of the Act and an election petition can be and must be dismissed if it suffers from any such vice. 19. We may now advert to the facts at hand to examine whether the election petition suffered from the vice of non-disclosure of material facts as stipulated in Section 83(1)(a) of the Act. As already stated t ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... its statutory functions and are, therefore, binding on the Returning Officers. They are obliged to follow them in letter and spirit. But the question for consideration is whether the afore-extracted paragraphs of the election petition disclose material facts so as to constitute a complete cause of action. In other words, the question is whether the alleged omission on the part of the Returning Officer ipso facto materially affected the election result. It goes without saying that the averments in the said two paragraphs are to be read in conjunction with the preceding paragraphs in the election petition. What is stated in the preceding paragraphs, as can be noticed from grounds (i) and (ii) reproduced above, is that by the time specimen signature of the polling agent were circulated 80% of the polling was over and because of the absence of the polling agent the voters got confused and voted in favour of the first respondent. In our opinion, to say the least, the pleading is vague and does not spell out as to how the election results were materially affected because of these two factors. These facts fall short of being material facts as contemplated in Section 83(1)(a) of the Ac ..... X X X X Extracts X X X X X X X X Extracts X X X X
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