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PETITIONER: AZHAR HUSSAIN

       Vs.

RESPONDENT: RAJIV GANDHI

DATE OF JUDGMENT25/04/1986

BENCH: THAKKAR, M.P. (J) BENCH: THAKKAR, M.P. (J) VENKATARAMIAH, E.S. (J)

CITATION:  1986 AIR 1253            1986 SCR  (2) 782  1986 SCC  Supl.  315     1986 SCALE  (1)573  CITATOR INFO :  R          1987 SC1577  (4,10,28)  R          1987 SC1926  (4)  F          1990 SC 924  (29)  R          1990 SC1731  (9,10)

ACT:      Representation of the People Act, 1951 :      Section 80  to 83,  86  &  87  -  Election  Petition  - Mandatory  requirement   to  furnish   material  facts   and particulars - Non compliance - Summary dismissal of election petition -  What are material particulars to be incorporated in an Election Petition.      Civil Procedure  Code, 1908 - Order 6 Rule 16 and Order 7 Rule 11(a) - Election Petition - Applicability of.

HEADNOTE:      The respondent  having secured the highest votes in the 1984 general  elections was  declared elected as a Member of the Lok Sabha from the Amethi Constituency of Uttar Pradesh. On  the   last  date   for  challenging  the  election,  the appellant,  an  elector  from  that  constituency  filed  an election petition challenging the election of the respondent alleging various  corrupt  practices.  The  respondent  upon being served,  instead of filing a written statement, raised preliminary objection to the maintainability of the petition contending that  the petition  was lacking in material facts and particulars  and was defective on that account, and that since it did not disclose any cause of action it deserved to be dismissed.      The High  Court upheld the preliminary objection of the respondent and dismissed the petition.      In the  appeal to this Court on behalf of the appellant it was  contended : (1) that where the legislature wanted to provide for  summary dismissal of the election petition, the legislature has  spoken on the matter and that the intention was to provide for summary dismissal only in case of failure to comply  with the  requirement of  sections 81, 82 and 117 and not  section 83;  (2)  that  the  powers  to  reject  an election petition summarily under the provisions of the Code of Civil 783 Procedure should not be exercised at the threshold, and that

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the Court  must proceed with the trial, record the evidence, and only  after  the  trial  of  the  election  petition  is concluded that  the powers under the Code of Civil Procedure for dealing  with the  defective  petition  which  does  not disclose cause of action should be exercised.      Dismissing the appeal, ^      HELD :  1. The  results of  an election  are subject to judicial scrutiny  and control only with an eye on two ends. First, to  ascertain that  the ’true’  will of the people is reflected in the results and second, to secure that only the persons  who   are  eligible   and   qualified   under   the Constitution obtain  the representation.  In order  that the "true will"  is ascertained  the  Courts  will  step  in  to protect and  safeguard the  purity  of  Elections,  for,  if corrupt  practices   have  influenced  the  result,  or  the electorate has  been a  victim  of  fraud  or  deception  or compulsion on  any essential  matter, the will of the people as recorded  in their  votes is not the ’free and true’ will exercised intelligently  by deliberate choice. It is not the will of  the people in the true sense at all. And the Courts would, therefore, be justified in setting aside the election in accordance  with the  law if  the corrupt  practices  are established. So  also when  the essential qualifications for eligibility demanded  by the  constitutional requirement are not fulfilled, the fact that the successful candidate is the true choice  of the  people  is  a  consideration  which  is totally irrelevant notwithstanding the fact that it would be virtually  impossible   to  re-enact   the   elections   and reascertain the wishes of the people at the fresh elections, the time scenario having changed. [788 B-F]      1.1 In  matters of election the will of the people must prevail and Courts would be understandably extremely slow to set at  naught the  will of  the people  truely  and  freely exercised. If  Courts were to do otherwise, the Courts would be pitting  their will  against the  will of  the people, or countermanding the  choice of the people without any object, aim or  purpose. But where corrupt practices are established the result  of the  election does not echo the true voice of the people.  The Courts  would not  then be  deterred by the aforesaid considerations  which in  the  corruptior-scenario lose 784 relevance. Such  would be  the approach  of the  Court in an election matter  where a  corrupt practice  is  established. [788 F-H; 789 A]      2. Undisputedly, the Code of Civil Procedure applies to the trial of an election petition by virtue of section 87 of the Representation  of People  Act of 1951, and so the Court trying the  election petition  can act  in exercise  of  the powers of  the Code including Order 6, Rules 16 and Order 7, Rule 11(a). The fact that a reference to section 83 does not find a  place in  section 86  of the  Act does not mean that power under  the Civil  Procedure Code  cannot be exercised. [792 D-E; 793 F]      3. 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 appropriate orders  in exercise  of powers under the Code of Civil Procedure  can be  passed if the mandatory requirement enjoined by  section  83  of  the  Act  to  incorporate  the material facts  in the  election petition  are not  complied with. [794 F-H]      3.1 Even  in an  ordinary Civil  litigation  the  Court readily exercises  the power  to reject  a plaint if it does

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not disclose any cause of action, or the power to direct the concerned  party  to  strike  out  unnecessary,  scandalous, frivolous or  vexatious parts  of  the  pleadings.  Or  such pleadings which  are likely  to cause  embarassment or delay the fair  trial of the action or which is otherwise an abuse of the  process of law. An order directing a party to strike out a  part of  the pleading would result in the termination of the  case arising  in the  context of  said pleading. The Courts in  exercise of  the powers  under the  Code of Civil Procedure can  also treat any point going to the root of the matter  such   as  one   pertaining   to   jurisdiction   or maintainability as  a preliminary  point and  can dismiss  a suit  without   proceeding  to   record  evidence  and  hear elaborate arguments  in the context of such evidence, if the Court is  satisfied that  the action would terminate in view of the  merits of  the preliminary  point of objection. Such being the  position  in  regard  to  matters  pertaining  to ordinary Civil  litigation, there is greater reason why in a democratic set-up,  in regard  to a  matter pertaining to an elected representative  of the  people which  is  likely  to inhibit him  in the  discharge of  his  duties  towards  the Nation, the  controversy is  set at  rest at the earliest if the facts of the case and the law so warrant. [795 H; 796 A- C; 797 D-E] 785      3.2 Since  the Court  has  the  power  to  act  at  the threshold, the  powers must  be exercised  at the  threshold itself in  case the Court is satisfied that it is a fit case for the  exercise of  such power  and that  exercise of such power is warranted under the relevant provision of law. [797 E-F]      4. All  the primary  facts which  must be  proved by  a party to  establish a  cause of  action or  his defence  are material facts. The omission of a single material fact would lead to  an incomplete  cause  of  action  and  an  election petition without  the material  facts relating  to a corrupt practice is not an election petition at all. [795 B-C; A-B]      4.1 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  charges 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 s. 83(1)(a). An  election   petition,  therefore,  can  be  and  must  be dismissed if it suffers from any such vice. [795 C-D]      Hardwari Lal  v. kanwal  Singh, [1972]  2  S.C.R.  742, Samant N.  Balkrishna &  Anr. v.  George Fernandez  &  Ors., [1969] 3  S.C.C. 239,  Udhav Singh  v.  Madhav  Rao  Scindia Popatlal Manilal  Joshi &  Ors., [1969] 3 S.C.R. 217, relied upon.      5. The  pleading in  regard to  matters where  there is scope  for  ascribing  an  alleged  corrupt  practice  to  a returned candidate  in the  context of  a meeting  of  which dates and  particulars are  not given  would  tantamount  to failure  to   incorporate  the  essential  particulars.  And inasmuch as  there was a possibility that witnesses could be procured in  the context  of a  meeting at  a place  or date convenient for  adducing evidence, the High Court should not even have  permitted evidence  on that  point. No  amount of evidence could cure the basic defect in the pleading and the pleading as  it stood must be construed as one disclosing no cause of action. [806 E-G]      Nihar Singh v. Rao Birendra Singh, [1970] 3 S.C.C. 239, relied upon.

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786      6. In  the instant case, on a scrutiny of the averments made in  the Election  Petition it is evident that it is not pleaded as  to who  had distributed the pamphlets, when they were distributed,  where they were distributed, to whom they were  distributed,   and  in   whose  presence   they   were distributed. The  pleading  is  ominously  silent  on  these aspects. It  has not  even been  pleaded that any particular person with  the consent  of the  respondent or his election agent  distributed   the  said   pamphlets.  The   pleading, therefore, does not spell out a cause of action. [818 E-G]      7. The  election petition,  in the  instant  case,  was filed on  the last  day on which the election petition could have been  presented. Having  regard to  the rigid period of limitation prescribed by section 81 of the Act, it could not have been  presented even  on the  next day.  Such being the admitted position,  it would  make little difference whether the High Court used the expression ’rejected’ or dismissed’. It would  have had  some significance  if the  petition  was ’rejected’ instead of being ’dismissed’ before the expiry of the limitation  inasmuch as a fresh petition which contained material facts  and was  in conformity with the requirements of law and which disclosed a cause of action could have been presented ’within’  the period of limitation. The High Court was,  therefore,   perfectly  justified  in  dismissing  the petition. And  it makes no difference whether the expression employed in  ’dismissed’ or  ’rejected’ for nothing turns on whether the  former expression  is employed  or the  latter. [821 H; 822 A-D]      8. The  expression ’corrupt  practice’ employed  in the Act would  appear to  be rather  repulsive and offensive. It can  perhaps  be  replaced  by  a  natural  and  unoffensive expression such as ’disapproved practices’. [822 D-E]

JUDGMENT:      CIVIL APPELLATE  JURISDICTION :  Civil Appeal  No. 2774 (NCE) of 1985.      From the  Judgment and Order dated 6th May, 1985 of the Allahabad High Court in Election Petition No. 2 of 1985.      Ravi Prakash  Gupta, N.M. Popli and Ms. Kirti Gupta for the Appellant. 787      Dr. Y.S.  Chitale, M.R.  Sharma, S.  C. Maheshwari, Ms. Rachna Joshi and Dalveer Bhandari for the Respondent.      The Judgment of the Court was delivered by      THAKKAR, J.  An election petition having been dismissed on the  ground that  it did  not comply  with the  mandatory requirement  to   furnish  material  facts  and  particulars enjoined by  Section 83  of the Representation of People Act and that it did not disclose a cause of action, the election petitioner has appealed to this Court under Section 116-A of the Representation of the People Act of 1951 (Act).      The respondent was elected as a Member of the Lok Sabha from the Amethi Constituency of Uttar Pradesh in the general elections held  on 24th  December, 1984  under Section 15 of the Act.  Having secured  the highest  votes (3,65,041)  the respondent was  declared as elected on December 29, 1984. On 12th February,  1985, the  last date  from  challenging  the election the  appellant (who  claims to  be a  worker of the Rashtriya  Sanjay   Manch),  an   elector  from  the  Amethi constituency, filed the election petition giving rise to the present appeal.      The election  of  the  returned  candidate,  respondent

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herein, was  challenged on  the ground  of  alleged  corrupt practices as  defined by  the Act. Seventeen grounds set out in para  4(I to  XVII) of  the election petition were called into aid  in support  of the  challenge. The respondent upon being served,  instead of filing a written statement, raised preliminary  objections   to  the   maintainability  of  the petition on  a number  of grounds inter alia contending that the petition  was lacking  in material facts and particulars and was defective on that account, and that since it did not disclose any  cause of  action it  deserved to be dismissed. The  appellant  on  his  part  filed  two  applications  for amendment of  the election  petition. (None of which was for supplying the  material facts  and  particulars  which  were missing). All  these applications  were heard  together  and were disposed  of by the Judgment under appeal upholding the preliminary objection raised on behalf of the Respondent and dismissing the election petition. Hence this appeal. 788      In a  democratic polity  ’election’  is  the  mechanism devised to mirror the true wishes and the will of the people in the matter of choosing their political managers and their representatives who  are supposed  to echo  their views  and represent their  interest in the legislature. The results of the Election  are subject  to judicial  scrutiny and control only with  an eye  on two ends. First, to ascertain that the ’true’ will  of the  people is  reflected in the results and second, to secure that only the persons who are eligible and qualified under  the Constitution obtain the representation. In order that the "true will" is ascertained the Courts will step in  to protect  and safeguard  the purity of Elections, for, if corrupt practices have influenced the result, or the electorate has  been a  victim  of  fraud  or  deception  or compulsion on  any essential  matter, the will of the people as recorded in their votes is not the ’free’ and ’true’ will exercised intelligently  by deliberate choice. It is not the will of  the people in the true sense at all. And the Courts would, therefore,  it stands  to  reason,  be  justified  in setting aside  the election  in accordance  with law  if the corrupt  practices   are  established.   So  also  when  the essential qualifications  for eligibility  demanded  by  the constitutional requirements are not fulfilled, the fact that the successful candidate is the true choice of the people is a consideration  which is totally irrelevant notwithstanding the fact  that it  would be virtually impossible to re-enact the elections  and reascertain  the wishes  of the people at the fresh  elections the  time-scenario having  changed. And also  notwithstanding   the  fact   that  elections  involve considerable expenditure  of public revenue (not to speak of private funds)  and result  in  loss  of  public  time,  and accordingly there  would be  good reason  for not setting at naught the  election which  reflects the  true will  of  the people lightly.  In matters  of election  the  will  of  the people must  prevail  and  Courts  would  be  understandably extremely slow to set at naught the will of the people truly and freely  exercised. If  Courts were  to do otherwise, the Courts would  be pitting  their will against the will of the people, or  countermanding the  choice of the people without any object,  aim or purpose. But where corrupt practices are established the  result of  the election  does not  echo the true voice  of the  people. The  Courts would  not  then  be deterred  by  the  aforesaid  considerations  which  in  the corruption-scenario  lose   relevance.  Such  would  be  the approach of the Court in an 789 election matter  where corrupt  practice is established. But

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what should  happen when  the material facts and particulars of the  alleged corrupt  practices are not furnished and the petition does  not disclose  a cause  of  action  which  the returned candidate  can under  law be called upon to answer? The High  Court  has  given  the  answer  that  it  must  be summarily  dismissed.   The  appellant  has  challenged  the validity of the view taken by the High Court.      Learned  counsel  for  the  appellant  has  urged  four submissions in support of this appeal viz:           A -  Since the  Act does not provide for dismissal           of  an   election  petition  on  the  ground  that           material particulars  necessary to  be supplied in           the election petition as enjoined by Section 83 of           the Act  are  not  incorporated  in  the  election           petition inasmuch  as Section  86 of the Act which           provides for  summary dismissal  of  the  petition           does not  advert to Section of the Act there is no           power in  the Court  trying election  petitions to           dismiss the  petition even  in exercise  of powers           under the Code of Civil Procedure.           B -  Even if the Court has the power to dismiss an           election petition  summarily otherwise  than under           Section 86  of the  Representation of  People Act,           the power cannot be exercised at the threshold.           C -  In  regard  to  seven  grounds  of  challenge           embodied in  paragraph 4  of the election petition           viz. I,  II (i,  ii &  iii), XIII,  XIV and XV the           High Court  was not  justified in  dismissing  the           petition.           D -  Even if  the powers  under the  Code of Civil           Procedure can  be exercised  by the  Court hearing           election  petitions   worse  comes  to  worse,  an           election petition  may be  rejected under Order 7,           Rule 11  of the Code of Civil Procedure, but in no           case can it be dismissed. GROUND A: 790      In order  to understand  the plea, a glance at Sections 83 and 86(1) in so far as material is called for :-           "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 of 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 annexure to the petition shall           also be  signed by  the petitioner and verified in           the same manner as the petition."           "86 - Trial of election petitions -           (1) The  High  Court  shall  dismiss  an  election           petition which does not comply with the provisions           of section 82 or section 117.

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         Explanation  -   An  order   of  the   High  Court           dismissing an  election petition  under this  sub-           section shall  be deemed to be an order made under           clause (a) of section 98." 791      The argument  is that  where the  legislature wanted to provide for  summary dismissal of the election petition, the legislature has  spoken on  the matter. The intention was to provide for  summary dismissal  only in  case of  failure to comply with  the requirement  of Sections 81, 82 and 117 (1) and not Sec. 83. ------------------------------------------------------------ (1)       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           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 an 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.           82. Parties  of the  petition - A petitioner shall           join as respondents to his petition -           (a) where  the petitioner, in addition to claiming           declaration that the election of all or any of the           returned  candidate  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. 792      The argument  is that  inasmuch as Section 83(1) is not adverted to  in Section 86 in the context of the provisions, non-compliance with  which entails dismissal of the election petition,  it   follows   that   non-compliance   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 (2). Since CPC is applicable, the Court trying the election ------------------------------------------------------------           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. (2)       87. Procedure  before the High Court - (1) Subject

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         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 the           trial of the suits ;           Provided  that  the  High  Court  shall  have  the           discretion to  refuse, for  reasons to be recorded           in writing, to examine any witness or witnesses if           it is  of the  opinion that  the evidence  of such           witness or  witnesses  is  not  material  for  the           decision  of   the  petition  or  that  the  party           tendering such witness or witnesses is doing so on           frivolous grounds  or with  a view  to  delay  the           proceedings.           (2) The  provisions of  the Indian  Evidence  Act,           1872 (1 of 1872), shall, subject to the provisions           of this Act, be deemed to apply in all respects to           the trial of an election petition. 793 petition can  act in  exercise of  the powers  of  the  Code including Order  6 Rule 16 and Order 7 Rule 11(a) which read thus :- Order 6,  Rule 16  : "Striking out pleadings - The Court may           at any stage of the proceedings order to be struck           out or amend any matter in any pleading -           a) which may be unnecessary, scandalous, frivolous           or vexatious, or           b) which may tend to prejudice, embarrass or delay           the fair trial of the suit; or           c) which  is otherwise  an abuse of the process of           the Court." Order 7,  Rule 11  : "Rejection of Plaint - The plaint shall           be rejected in the following cases :-           a) where it does not disclose a cause of action ;           xxxxx          xxxxx          xxxxx"      The fact  that Section  82 does  not find  a  place  in Section 86  of the  Act does  not mean that powers under the CPC cannot be exercised.      There is  thus no  substance in  this  point  which  is already concluded  against the  appellant in Hardwari Lal v. Kanwal Singh,  [1972] 2 S.C.R. 742 wherein this Court has in terms negatived  this  very  plea  in  the  context  of  the situation that  material facts  and particulars  relating to the corrupt practice alleged by the election petitioner were not incorporated in the election petition as will be evident from the  following passage  extracted from  the judgment of A.N. Ray, J. who spoke for the three-judge Bench :           "The allegations  in paragraph  16 of the election           petition  do   not  amount  to  any  statement  or           material 794           fact of  corrupt practice.  It is not stated as to           which kind  or form  of assistance was obtained or           procured or  attempted to obtain or procure. It is           not  stated  from  whom  the  particular  type  of           assistance was  obtained or  procured or attempted           to obtain  or procure.  It is  not stated  in what           manner the  assistance was  for the furtherance of           the prospects of the election. The gravamen of the           charge of  corrupt practice  within the meaning of           Section  123(7)   of  the   Act  is  obtaining  or           procuring or  abetting or  attempting to obtain or           procure any  assistance other  than the  giving of           vote. In  the absence of any suggestion as to what

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         that  assistance  was  the  election  petition  is           lacking in  the most  vital and essential material           fact to furnish a cause of action.           Counsel on behalf of the respondent submitted that           an election  petition could  not be  dismissed  by           reason of  want of  material facts because Section           86 of the Act conferred power on the High Court to           dismiss the election petition which did not comply           with the  provisions of  Section 81, or Section 82           or Section  117 of the Act. It was emphasized that           Section 83 did not find place in section 86. Under           section 87  of the  Act  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  to  the           trial of  the suits. A suit which does not furnish           cause of action can be dismissed."      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 N.  Balkrishna &  Anr. v.  George Fernandez  &  Ors., [1969] 3  S.C.C. 239,  has expressed  itself in  no  unclear terms that 795 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 v. Madhav Rao  Scindia, [1977]  1 S.C.C.  511, 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 disobediance  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. The first ground of challenge must therefore fail. GROUND B :      Learned counsel for the petitioner has next argued that in any  event the  powers to  reject  an  election  petition summarily  under   the  provisions  of  the  Code  of  Civil Procedure should  not be  exercised  at  the  threshold.  In substance, the  argument is that the court must proceed with the trial,  record the evidence, and only after the trial of the election petition is concluded that the powers under the Code of  Civil Procedure  for dealing appropriately with the defective petition  which does  not disclose cause of action should be exercised. With respect to the learned counsel, it is an  argument which  it is  difficult to  comprehend.  The whole purpose  of confernment  of such  powers is  to ensure that a  litigation which  is meaningless  and bound to prove

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abortive should  not be  permitted to occupy the time of the court and  exercise the mind of the respondent. The sword of Damocle 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. Or the power to direct the 796 concerned  party  to  strike  out  unnecessary,  scandalous, frivolous or  vexatious parts  of  the  pleadings.  Or  such pleadings which  are likely  to cause embarrassment or delay the fair  trial of the action or which is otherwise an abuse of the  process of law. An order directing a party to strike out a  part of  the pleading would result in the termination of the case arising in the context of the said pleading. The Courts in  exercise of  the powers  under the  Code of Civil Procedure can  also treat any point going to the root of the matter  such   as  one   pertaining   to   jurisdiction   or maintainability as  a preliminary  point and  can dismiss  a suit  without   proceeding  to   record  evidence  and  hear elaborate arguments  in the context of such evidence, if the Court is  satisfied that  the action would terminate in view of the  merits of  the preliminary  point of  objection. The contention that  even if  the election petition is liable to be dismissed ultimately it should be so dismissed only after recording  evidence   is  a   thoroughly  misconceived   and untenable argument.  The powers  in this behalf are meant to be exercised  to serve  the purpose  for which the same have been conferred on the competent Court so that the litigation comes to  an end at the earliest and the concerned litigants are relieved  of the  psychological burden of the litigation so as  to be  free to  follow their  ordinary  pursuits  and discharge their  duties. And  so that  they can adjust their affairs on  the footing  that the  litigation will  not make demands on  their time  or resources,  will not impede their future work, and they are free to undertake and fulfil other commitments. Such  being the  position in  regard to matters pertaining to  ordinary Civil  litigation, there  is greater reason for  taking  the  same  view  in  regard  to  matters pertaining to elections. So long as the sword of Damocles of the election  petition remains  hanging an elected member of the Legislature  would not  feel sufficiently free to devote his whole-hearted  attention to matters of public importance which clamour  for his  attention  in  his  capacity  as  an elected representative  of the  concerned constituency.  The time and  attention demanded by his elected office will have to be  diverted to  matters pertaining to the contest of the election petition. Instead of being engaged in a campaign to relieve the  distress of  the people  in general  and of the residents of his constituency who voted him into office, and instead of  resolving their problems, he would be engaged in a campaign  to establish  that he  has  in  fact  been  duly elected. Instead of discharging his functions as the 797 elected representative  of the people, he will be engaged in a  struggle   to  establish   that  he   is  indeed  such  a representative, notwithstanding the fact that he has in fact won the  verdict and the confidence of the electorate at the polls. He  will have not only to wind the vote of the people but also  to win  the vote  of the Court in a long drawn out litigation before  he can whole-heartedly engaged himself in discharging the  trust reposed in him by the electorate. The pendency of  the election  petition  would  also  act  as  a hindrance if  he be entrusted with some public office in his elected capacity.  He may  even have  occasions to deal with

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the representatives of foreign powers who may wonder whether he will  eventually succeed  and hesitate  to deal with him. The fact that an election petition calling into question his election  is  pending  may,  in  a  given  case,  act  as  a psychological fetter and may not permit him to act with full freedom. Even  if he  is made of stern metal, the constraint introduced by  the pendency of an election petition may have some impact on his sub-conscious mind without his ever being or becoming  aware of  it. Under the circumstances, there is greater reason  why in  a democratic  set-up, in regard to a matter pertaining to an elected representative of the people which is  likely to  inhibit him  in the  discharge  of  his duties towards the Nation, the controversy is set at rest at the earliest,  if the  facts of  the case  and  the  law  so warrant. Since  the Court  has  the  power  to  act  at  the threshold the  power must  be  exercised  at  the  threshold itself in  case the Court is satisfied that it is a fit case for the  exercise of  such power  and that  exercise of such powers is warranted under the relevant provisions of law. To wind up  the dialogue, to contend that the powers to dismiss or reject  an election  petition or  pass appropriate orders should not  be  exercised  except  at  the  stage  of  final judgment after  recording the  evidence even if the facts of the case  warrant exercise of such powers, at the threshold, is to  contend that  the legislature  conferred these powers without point  or purpose,  and we must close our mental eye to the  presence of  the powers  which should  be treated as non-existent. The Court cannot accede to such a proposition. The  submission   urged  by  the  learned  counsel  for  the petitioner in this behalf must therefore be firmly repelled. GROUND C :      The learned  counsel for  the election  pecitioner  has very 798 fairly contended  that out of the 17 grounds embedded in the election petition, grounds other than the seven mentioned by him cannot  be  pressed  into  service  and  that  he  would restrict his  submissions to  these  seven  grounds.  It  is therefore unnecessary  to advert  to grounds  other than the seven grounds  which have  been urged  in  support  of  this petition. We  will accordingly  proceed to consider the plea urged to  the effect that in regard to the aforesaid alleged corrupt practices,  the High  Court  was  not  justified  in dismissing the election petition.      Before we deal with these grounds seriatim, we consider it appropriate  to restate the settled position of law as it emerges from the numerous decisions of this Court which have been cited  before us  in regard  to the question as to what exactly is the content of the expression ‘material facts and particulars’,   which    the   election   petitioner   shall incorporate in  his petition  by virtue  of Section 83(1) of the Act.           (1) What are material facts and particulars ?           Material facts  are  facts  which  if  established           would give  the petitioner  the relief  asked for.           The test  required to  be answered  is whether the           Court could  have given a direct verdict in favour           of the  election petitioner  in case  the returned           candidate had  not appeared to oppose the election           petition on  the basis of the facts pleaded in the           petition. Manubhai  Nandlal  Amarsey  v.  Popatlal           Manilal Joshi & Ors., [1969] 3 S.C.R. 217.           (2) In  regard to  the  alleged  corrupt  practice           pertaining  to  the  assistance  obtained  from  a           Government  servant,   the  following   facts  are

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         essential to  clothe the  petition with a cause of           action which  will call  for an  answer  from  the           returned candidate  and must therefore be pleaded.           Hardwari Lal v. Kanwal Singh, [1972] 2 S.C.R. 742:           a) mode of assistance;           b)measure of assistance; and 799           c) all  various forms  of facts  pertaining to the           assistance.           (3) In  the context  of an  allegation as  regards           procuring, obtaining,  abetting or  attempting  to           obtain or  procure the  assistance  of  Government           servants in election it is absolutely essential to           plead the following :           a)  kind   or  form   of  assistance  obtained  or           procured;           b) in  what manner  the assistance was obtained or           procured or  attempted to  be obtained or procured           by  the   election-candidate  for   promoting  the           prospects of  his election  Hardwari Lal v. Kanwal           Singh. (supra)           (4) The returned candidate must be told as to what           assistance he  was supposed  to have  sought,  the           type of  assistance, the manner of assistance, the           time of  assistance, the  persons  from  whom  the           actual  and   specific  assistance   was  procured           Hardwari Lal v. Kanwal Singh (supra)           (5) There must also be a statement in the election           petition  describing   the  manner  in  which  the           prospects of  the election  was furthered  and the           way in which the assistance was rendered. Hardwari           Lal v. Kanwal Singh (supra).           (6)  The   election  petitioner  must  state  with           exactness the  time of  assistance, the  manner of           assistance, the  persons from  whom assistance was           obtained or  procured, the  time and  date of  the           same, all  these will  have to  be set  out in the           particulars Hardwari Lal v. Kanwal Singh (supra).      And having  restated the  settled position in regard to the content  of the expression ‘material facts’, the time is now ripe  to proceed  to deal  with the grounds on which the election of the returned candidate is assailed, seriatim.                          GROUND I : 800      Alleged corrupt  practice as  incorporated in  Ground I reads thus :-           "The election  of the  respondent is  liable to be           set  declared  void  because  the  respondent  was           guilty  of   the  following  corrupt  practice  as           defined under Section 123(7) of the Representation           of People  Act, 1951,  read with Section 100(1)(b)           and 100(D)(ii)  of the  said Act, the said corrupt           practice was  committed with  the consent  of  the           respondent returned candidate and of other workers           of his  with his  consent. In  any event,  it  was           committed  by   the  respondent’s  agents  in  the           interests of  the returned  candidate and the said           corrupt  practice   has  materially  affected  the           result of  the election  in so  far as it concerns           the returned  candidate. One  M.H. Beg  who at one           time was the Chief Justice of the Supreme Court of           India and  is a  close friend  of the Nehru family           and is  personally known  to and friendly with the           respondent, appeared  on the government controlled           news  media   and  made   a  speech  praising  the

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         respondent and  comparing his  entry into politics           as the  birth of new Arjuna, the insinuation being           that  the   opposition  were   the  kauravas.  His           appearance on the television was relayed day after           day on the government controlled media. Television           sets  had  been  installed  in  practically  every           election  office   of  the  respondent  in  Amethi           constituency and  throughout the election campaign           thousands and  thousands of voters were exposed to           the television  appearance and  speech of the said           Mr. Beg.  Mr. Beg is a gazetted officer, being the           Chairman  of   the  Minorities   Commission.   His           services  were   procured  and   obtained  by  the           respondent, his  agents and other persons with the           consent of  the respondent  with a  view to assist           the  furtherance   of   the   prospects   of   the           respondent’s election.  Mr. Beg was seen and heard           on the television as later as 21st December, 1984.           Propaganda about  Mr. Beg’s  was done particularly           amongst the members of the Muslim community. Apart           from being  gross misuse of the office of Chairman           of the Minorities Commission, the same constitutes 801           a gross corrupt practice under the election law." Why the  High Court held that material facts and particulars are absent and did not disclose a cause of action ?           The High Court observed :-           "The contention  of the  learned counsel  for  the           respondent is  that there  is no pleading that Mr.           Beg  was   "a  person   in  the   service  of  the           government" as,  according to the learned counsel,           the Chairman of the Minorities Commission is not a           person in the S service of the government. Learned           counsel  for   the  petitioner   says   that   the           petitioner had  specifically pleaded  that Mr. Beg           was a  gazetted officer  which implies  a pleading           that he  was in  the service  of  the  government.           Learned  counsel  for  the  respondent  says  that           simply because  a person is a gazetted officer, it           is not necessary that he must also be a government           servant because the appointment of so many persons           is gazetted  and yet  some  of  them  may  not  be           government servants.  Be that  as it may, the fact           remains that  the petitioner had not stated in the           pleading that  Mr. Beg was a person in the service           of the  government  as  specifically  required  by           Section 123(7)  of the  Act. This requirement is a           requirement of  the statute  and is,  therefore, a           material fact  within the meaning of Sec. 83(1)(a)           of the  Act. Similarly,  the  statement  that  the           services of Mr. Beg were procured and obtained "by           the respondent,  his agents and other persons with           the consent of the respondent" is clearly vague as           discussed  above.   It  was   incumbent  upon  the           petitioner  to   specify  which   of   the   three           alternatives he  meant to  plead; in particular it           was necessary for him to indicate the names of the           respondent’s agents  and other  persons to  enable           the respondent  to know  that what  was  the  case           which he was expected to meet. Learned counsel for           the  respondent   further   contended   that   the           petitioner has not set out the exact words used by           Mr. Beg  in his  speech; the  expression "a speech           prais- 802

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         ing the  respondent" and comparing his "entry into           politics as  the birth  of new Arjuna" is not what           Mr. Beg  might have said. In the case of K.M. Mani           v. P.J.  Antony, [1979]  2  S.C.  Cases  221,  the           speech made  by a  Police  Officer  exhorting  the           electors in  an  election  meeting  to  support  a           candidate was  questioned. It was held that a mere           statement  of   the  making   of  the   speech  or           exhortation was not enough, and that transcript of           the alleged  speech or  contemporaneous record  of           the points  or atleast  substance  of  the  speech           should  have   been  made   available.  In   these           circumstances  the   proposed  pleading   in  this           paragraph does not set out the material facts and,           therefore, constitutes  an in  complete  cause  of           action under section 123(7) of the Act." Whether the  High Court  was right  in taking  the aforesaid view:      The averments  contained in  paragraph 4  pertaining to Ground No.l  do not  satisfy the test prescribed in Manubhai Anarsey v.  Popatlal  Manilal  Joshi  &  Ors.,  (supra)  and Hardwari Lal  v. Kanwal  Singh, (supra).  The most important test which  remained unsatisfied  is as regards the omission to satisfy  in what  manner the  assistance was obtained and procured  by   the  election-candidate   for  promoting  the prospects of his election. All that has been stated is:           "His services  were procured  and obtained  by the           respondent, his  agents and other persons with the           consent of  the respondent  with a  view to assist           the  furtherance   of   the   prospects   of   the           respondent’s election.." It is  not mentioned  as to  who procured  or  obtained  the services of  Shri  Beg,  in  what  manner  he  obtained  the services and  what were the facts which went to show that it was  with  the  consent  of  the  respondent.  Unless  these "essential facts  which would  clothe the  petition  with  a cause of  action and  which will call for an answer from the returned candidate  are pleaded  as per the law laid down in Manubbai Nandlal  Amarsey v.  Popatlal Hanilal Joshi & Ors., (supra) it  cannot be  said that  the petition  discloses  a cause of action in regard to 803 this charge.  In the  absence of  these material  facts  and particulars the  Court could  not have rendered a verdict in favour of  the election  petitioner  in  case  the  returned candidate had  not appeared to oppose the election petition. It is  not sufficient  to show that a Government servant had appeared  on   the  public   media  to  praise  one  of  the candidates. It must also be shown that the assistance of the Government servant  was obtained either by the respondent or his agent  or by  any other  person with  the consent of the election candidate or his election agent. The averments made in the petition do not show (i) who had obtained or procured the assistance  from Shri  Beg; (ii)  how he had obtained or procured the  assistance of  Shri Beg;  and (iii) how it was said that  it was  with the consent of the respondent or his election agent. Nor is it shown which, if any, facts went to show that  it was  in furtherance  of the  prospects of  the respondent’s election.  In the absence of material facts and particulars in  regard to  these aspects, the petition would not disclose  the cause  of  action.  The  High  Court,  was therefore, perfectly  justified in reaching this conclusion. The petition  also does not disclose the exact words used in the speech;  or the  time and  date of making such a speech. Now, unless  the relevant  or  offending  passage  from  the

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speech is  quoted, it  cannot be  said what exactly Shri Beg had said, and in what context, and whether it was calculated to promote the election prospects of the respondent. Be that as it  may, inasmuch as these material facts and particulars to show  that the  services of  Shri Beg  were  procured  by someone with  the consent  of the respondent or his election agent are  not there, the averments pertaining to the charge do not  disclose a cause of action. Unless the nexus between the appearance  of Shri  Beg on  the  media  and  the  prior consent of the respondent or his election agent in regard to what he  was going  to say and the purposes for which he was going to  say is  set out  in the  material  particulars  it cannot be  said that  it disclosed a cause of action and the test laid  down in Manubhal Nandlal’s case, as also Hardwari Lal’s case  is  satisfied.  The  High  Court  was  therefore justified in  taking the  view that it has taken. We may, in passing, mention  a point  made by  learned counsel  for the respondent. It  was submitted  that the  averment must  also mention whether  the interview was a live one telecast after the date of filing of the nomination. If it was one recorded prior to the said date it may not be of any 804 consequence. This  argument also  requires consideration but we do  not propose  to rest our conclusion on this aspect as it is not necessary to do so. GROUND II(i) :      It has  been set  out in  para 4 of the petition in the following terms :           "Throughout  the   petitioner’s  constituency   in           Amethi, worker  employed by  the respondent and/or           his  agents   painted  available  space  with  two           slogans. The  first one  was "BETI  HAI SARDAR KI.           DESHI  KE  GADDAR  KI".  Literally  translated  it           implied one  of the  candidates i.e.  Mrs.  Maneka           Gandhi is  the daughter  of a  Sikh and that Sikhs           including her  father  are  traitors.  The  second           slogan was  "MANEKA TERA  YE  ABHIMAN.  BANANE  NA           DENGE KHALISTAN".  Literally translated  it  means           Maneka this  is your  illusion. We  will not allow           Khalistan to  be set up. The clear insinuation was           that the  said candidate  i.e. Mrs.  Maneka Gandhi           had a  vision of  Khalistan being set up, that her           election would  mean the creation of Khalistan and           that she  was a supporter of the Khalistan demand.           These slogans  were also  painted on  some of  the           vehicles used  by the  respondent’s workers during           the course  of campaign.  On every  occasion those           slogans were  uttered and  broadcast from vehicles           and from  microphones used  at public meetings and           from  the   Congress  (I)   party  office  in  the           constituency of  the respondent.  The use  of such           slogans was  the pet  theme of almost every speech           delivered in  the constituency during the election           campaign. The  use of  these objectionable slogans           and  posters   harmful  to   newspapers  and   the           respondent must  have known  to them.  But for the           fact chat  they had been used with his consent, he           would have  taken some  steps to repudiate them or           have their use discontinued. Photographs of walls,           with the  said slogans alongwith certificates will           be filed as Exhibit-A." Why the  High Court held that material facts and particulars are absent and did not disclose a cause of action? 805           In this context the High Court observed :-

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         "....... The contention of learned counsel for the           respondent is that this pleading suffers from lack           of  material   facts  because  the  names  of  the           workers,  employed   by  the  respondent,  or  his           agents, who painted the slogans or uttered them in           speeches or  broadcast from the vehicles, have not           been indicated.  It is pointed that the allegation           regarding the painting of slogans is vague because           it is  stated to have been done by "workers.......           and/or his  agents" signifying that the petitioner           himself did  not know  whether painting  work  was           done by  workers employed  by the respondent or by           his agents  or by both. I have already pointed out           that  this   kind  of   statement  is   vague  and           embarrassing and,  therefore, is  contrary to  the           concept of  material facts.  In the  case of Nihal           Singh v.  Rao Birendra  Singh  &  Anr.,  [1970]  3           Supreme Court  Cases 239  it  was  held  that  the           allegation that at meetings in different villages,           speeches were  given on  5th and 12th May 1968 was           vague in  the absence  of a  specification of date           and place  of each  meeting and evidence could not           be  permitted   to  be  led  in  the  matter.  The           allegation of  consent of  the respondent  to  the           paintings of the slogans or to their utterances in           the speeches  of his  workers is only inferential.           There  is   a  distinction   between  consent  and           connivance. The  pleading is  in the  nature of  a           pleading of connivance and not of consent which is           not enough,  vide the  case of  Charan Lal Sahu v.           Giani Zail  Singh (A.I.R.  1984 S.C.  309). In the           case of  Surendra Singh  v. Hardial  Singh (A.I.R.           1985 S.C.  89), it  has been  indicated in para 37           that consent  is the  life-line  to  link  up  the           candidate with  the action  of  the  other  person           which may  amount to corrupt practice unless it is           specifically pleaded and clearly proved and proved           beyond reasonable  doubt, the  candidate cannot be           charged for the action of others." Whether the  High Court  was right  in taking  the aforesaid view: 806      There is a glaring omission to mention the names of the workers said  to have been employed by the respondent or his agents who  have allegedly  painted the  slogans. So also no material particulars  are given  as regards  the vehicles on which the said slogans have been said to have been painted. There are  no material  particulars or  facts. We are of the view that  inasmuch as the material facts and particulars in regard to  this alleged  practice were not mentioned and the High Court  was justified  in taking  the view  that it  had taken. The averments contained in regard to this charge also do not  satisfy the  test laid down by the various decisions of this Court adverted hereinabove. A Division Bench of this Court in  Nihal Singh v. Rao Birendra Singh, [1970] 3 S.C.C. 239, speaking through Bhargava, J. has observed :-           "...The pleading  was so vague that it left a wide           scope to  the  appellant  to  adduce  evidence  in           respect of a meeting at any place on any date that           he found  convenient or for which he could procure           witnesses. The  pleding, in fact, was so vague and           was  wanting  in  essential  particulars  that  no           evidence should  have been  permitted by  the High           Court on this point...... "                                                (see para 8)

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    The principle  laid down is that the pleading in regard to matters  where there  is scope  for ascribing  an alleged corrupt practice to a returned candidate in the context of a meeting of  which dates  and particulars are not given would tantamount  to   failure  to   incorporate   the   essential particulars and  that inasmuch  as there  was a  possibility that witnesses could be procured in the context of a meeting at a  place or  date convenient  for adducing  evidence, the High Court  should not  even have permitted evidence on that point. In  other words, no amount of evidence could cure the basic defect  in the  pleading and  the pleading as it stood must be  construed as  one disclosing no cause of action. In the light  of the  aforesaid  principle  laid  down  by  the Supreme Court  which has  held the  field for  more than  15 years, the  High Court  was perfectly  Justified in reaching the conclusion called into question by the appellant. 807 Ground II(ii) : Alleged corrupt  practice as  incorporated in  Ground II(ii) reads as under :-           "The respondent himself toured the constituency on           the 12th  and 13th December, 1984. On the night of           the 11th  as he  was entering  the constituency he           was stopped by the petitioner’s workers at Inhauna           Kashah. The  walls there  bore these  slogans. The           petitioner alongwith  other  workers  stopped  the           respondent’s vehicle and drew his attention to the           so vulgar  slogans.  The  respondent  saw  nothing           objectionable in  these slogans.  He was requested           to give instructions to the authorities that these           should be  removed and  he contemptuously  had the           workers dismissed  and dispersed. He declared that           their leader  (refering  to  Mrs.  Maneka  Gandhi)           deserves nothing  better. The respondent delivered           several speeches  during the  course of his visit.           In none  of these  speeches did he repudiate these           slogans.   He    repeatedly   referred    to   the           assassination of  his mother  and to  the Anandpur           Resolution  saying   that   the   opposition   had           encouraged seccessionist  and violent elements and           that the  opposition conclaves  in  the  past  had           given rise  to the  emotion  that  had  eventually           taken the  prime minister,  his mother’s  life. He           insinuated that  the assassins were sikhs and then           asked the  audience to make up their minds whether           they still wanted somebody from the same community           to succeed in the election." Why the  High Court held that material facts and particulars are absent and did not disclose a cause of action ?           The High Court observed :           "Learned  counsel  for  the  respondent  correctly           contends that  these  averments  again  are  vague           because they  do  not  describe  the  petitioner’s           workers who  stopped  the  respondent  or  furnish           details of  the speeches  in which  the respondent           was 808           expected to  repudiate the  slogans. He  has  also           correctly urged that the so-called request if any,           to  the   respondent  for   ’instructions  to  the           authorities’  was   misconceived   and   did   not           establish any  obligation  of  the  respondent  to           direct the  authorities under any provision of the           election law." Whether the  High Court  was right  in taking  the aforesaid

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view:      In this  case also,  no time,  date and  place  of  the speeches delivered by the respondent have been mentioned. No exact extracts  from the  speeches are  quoted. Nor have the material facts  showing that  such statements imputed to the respondent were  indeed made,  been stated. No allegation is made to  the effect  that it  was in  order to prejudice the election of  any candidate.  Or  in  order  to  further  the prospects of  the election  of the respondent. The essential ingredients of  the alleged  corrupt practice  have thus not been spelled  out. So  far as  the meeting is concerned, the principle (1)  laid  down  in  Nihal  Singh’s  case  (supra) discussed in  the context  of the charge contained in ground (Il)(i) is  attracted. The  view taken  by the High Court is therefore unexceptionable. Ground II(iii) :      The alleged  corrupt practice as incorporated in ground II(iii) reads as under :-           "In line  with the  respondent’s speeches,  his  .           workers with  the knowledge  and  consent  of  the           respondent and  other  agents  of  the  respondent           entrusted with the task of conducting the election           campaign caused  a poster  of Hindi and Urdu to be           affixed in  all prominant  places  throughout  the           constituency. The  said poster  was in fact a page           of ------------------------------------------------------------ (1)"...... The  pleading was  so vague  that it  left a wide scope to  the appellant  to adduce  evidence in respect of a meeting at any place on any date that he found convenient or for which he could procure witnesses. The pleading, in fact, was so  vague and  was wanting in essential particulars that no evidence  should have been permitted by the High Court on this point..... " 809           the Blitz  newspaper  of  30.6.84  called  the  Id           Special. The Id that year was on 1st July, 1984.           The  heading   of  the   said  poster   which  was           underlined in  red alleged  conspiracy between the           leader of  the petitioner party and Bhindaranwale.           Photographs of Mrs Maneka Gandhi and Bhindaranwale           appeared separately on left and right hand corners           of  the  said  advertisement.  A  literal  English           translation of the poster is given below :- A copy           of the said poster will be filed as Exhibit-B. The           poster also purported to carry a fascimile copy of           a  letter   dated  the   10th   September,   1983,           purporting  to   be  addressed  by  Shri  Kalpnath           Sonkar, a member of the Rashtriya Sanjay Manch, to           Shri Bhindaranwale.  The letter  is a  forgery and           that it  was forged was publicly stated by alleged           author of  the alleged  letter and a criminal case           is pending  in the  matter thereof. The letter was           fabricated expressly  for the  express purpose  of           showing :-           (a)  that   Mrs.  Maneka   Gandhi  was  in  secret           conspiracy with Bhindaranwale.           (b) that  Mrs. Maneka  Gandhi  illegally  supplied           arms to Bhindaranwale and other successionists and           terrorists.           (c) that  Maneka Gandhi  was in  sympathy with the           creation of  Khalistan and  the  division  of  the           country and  the use  of violence  to achieve that           end.           The  said   allegations  are   totally  false  and

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         fabrication.  The   respondent  knew  them  to  be           false.    He did not and could not believe them to           be true. That complaints were made to the District           authorities about the obnoxious wall paintings and           posters to  which the  attention of the respondent           had been drawn. The said authorities while clearly           admitting the R.S.M. election agents and worker as           well as to the press correspondents that they were           objectionable  took   no  steps   to   remove   or           obliterate them.  Prominent newspapers  and  press           correspondents 810           continued to  draw attention  to those slogans and           posters but  the respondent or his workers took no           steps  whatsoever   to  stop   their   exhibition,           circulation and  use. The  respondent condoned and           sanctioned the  exhibition and circulation of this           poster. He  did nothing to stop the use thereof by           his workers. The wall painting mentioned above and           this poster were paid out of Congress (I) Party’s.           These were  therefore, his own expenses sanctioned           by himself.  Cutting of  some  of  the  newspapers           reports will be filed as Exhibit C." Why the  High Court held that material facts and particulars are absent and did not disclose a cause of action?           The High Court held :           "....... It  appears to  me that if an averment of           fact is an essential part of the pleading, it must           be considered  to be an integral part of the peti-           tion. If  such an  averment is not actually put in           the election  petition, the  petition suffers from           the lack  of material  facts  and  therefore,  the           statement of cause of action would be incomplete.           If it  is stated  in the election petition, either           in the  body of  the petition  itself or by way of           annexure, but  its copy  is not  furnished to  the           respondent, the  election petition would be hit by           the mischief  of Section  81(3) read  with Section           86(1) of  the Act. In my opinion, the reference to           the poster  and its  proposed translation  in  the           election petition,  which was  never  incorporated           into it, are material facts under Section 83(1)(a)           of the  Act their  absence cannot now be made good           by means  of an  amendment.  The  pleading  as  it           stands, and  even  if  it  were  permitted  to  be           amended would  suffer from lack of cause of action           on this  material fact,  and, therefore, is liable           to be  struck out.  The newspaper  cutting are not           used by  the petition as containing fact, but only           as evidence to that extent amendment is allowed. Whether the  High Court  wax right  in taking  the aforesaid view? 811      It will be noticed that in the election petition it has been  mentioned   that  a   copy  of  the  poster  would  be subsequently filed,  and  the  cuttings  of  some  newspaper reports  would   also  be   filed  later  on.  The  election petitioner sought  an amendment  to delete  the averments on both these  aspects. The  High Court  rejected the prayer in regard to  poster (Ex. B), but granted the prayer in respect of the  cuttings. The High Court has taken the view that the poster was  claimed to  be an  integral part of the election petition and  since it  was not  filed (much  less its  copy furnished to  the respondent)  the  pleading  suffered  from infirmity and  non-compliance with  Section 83(1)  read with

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Section 86(1)  of the Act. Non-filing of the poster is fatal to the  election petition  as in  the  absence  thereof  the petition suffers  from lack  of material facts and therefore the statement  of  cause  of  action  would  be  incomplete. Nothing turns  on the facts whether or not the words "a copy of the  said poster would be filed as Exhibit B" are allowed to be  retained in  the election  petition or are deleted as prayed for  by the  appellant. The fact remains that no copy of the  poster was  produced. It  must also be realized that the election  petitioner did not seek to produce the copy of the poster,  but only  wanted a  reference to  it deleted so that it  cannot be  said that  the accompaniments  were  not produced along  with the election petition. The fact remains that without  the production  of the  poster, the  cause  of action would  not be  complete and  it would be fatal to the election  petition   inasmuch  as  the  material  facts  and particulars would  be missing.  So also  it could not enable the respondent  to meet  the case.  Apart from that the most important aspect of the matter is that in the absence of the names  of   the  respondent’s  workers,  or  material  facts spelling out  the knowledge and consent of the respondent or his election agent, the cause of action would be incomplete. So much  so that  the principle  enunciated by this Court in Nihal Singh’s case (supra) would be attracted. And the Court would not  even have  permitted the  election petitioner  to lead evidence  on this  point. The  High Court was therefore fully justified in taking the view that it has taken. Ground XIII : Alleged corrupt  practice as incorporated in ground No. XIII reads as follows :- 812           "That, in  the later  half of June, 1983, a family           friend of  the respondent  and a  very  close  and           intimate friend  of the  respondent’s mother, Shri           Mohammed  Yunus,  wrote  a  book  called  "Son  of           India".  A  committee  called  the  Son  of  India           committee published  the book.  It was  printed by           Virendra Printers  of Karol  Bagh, New  Delhi. The           Son of  India committee  consisted among others of           Minister  Narasimha   Rao,  M.P.,   the  Executive           President  of  the  Congress  (I)  Shri  Kamlapati           Tripathi, Ministers Sitaram Kesari and Narain Dutt           Tiwari. The  book starts  with a  brief comment by           the  editor  entitled  "Pathakon  Se  Do  Battein"           (short dialogue  with the readers) and is followed           by a 22 page story of the two brothers, namely the           respondent  and   his  late  brother  Shri  Sanjay           Gandhi.  This   book  was   written,  printed  and           published  with   the   knowledge,   consent   and           assistance of  the respondent.  The respondent  by           himself by  the party,  by his workers and through           other persons  acting  with  the  consent  of  the           respondent and/or  his election agent, distributed           the said  book in  the Amethi  constituency during           the entire  course of  the election  campaign. The           said book  contains statements which are false and           which to  the knowledge  of  the  respondent  were           believed to  be false.  The said statements are in           relation to  the personal character and conduct of           Mrs.  Maneka  Gandhi.  The  said  statements  were           reasonably calculated  to prejudice  the prospects           of the  petitioner’s election. All statements made           in relation  to the  character or  conduct of  the           petitioner are  totally false.  In particular, the           petitioner says that the following statements made

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         therein  answer   the  description  aforesaid  and           constitute a  gross, corrupt  practice within  the           meaning of Section 123(4) of the Representation of           the People  Act, 1951.  The said  corrupt practice           has been committed by the respondent, the returned           candidate. It  has  also  been  committed  by  his           election agents  and by  other  persons  with  the           consent of  the  respondent  and/or  his  election           agents. A  copy of  the booklet  entitled  Son  of           India will  be filed  as Exhibit  ’P’. It has also           been committed in the interest of the 813           respondent returned  candidate and  by his agents.           The said  corrupt practice renders the election of           the respondent liable to be set aside and declared           void, as a result of Section 100(I)(b) of the said           Act. Reproduced  herebelow are  some of  the false           statements contained  in the  said  book  "Son  of           India" relating  to  the  personal  character  and           conduct  of   Mrs.  Maneka   Gandhi  one   of  the           candidates in the said election.           (a) That  Mrs. Maneka Gandhi utilised her marriage           to the  late Sanjay Gandhi as a means of enriching           herself.           (b) She  is spending  so much money on herself and           her various  activities. Where does all this money           come from?  The insinuation is that the petitioner           is possessed of wealth corruptly made which is now           being spent.           (c) That  she misused her marriage to increase her           influence and amass wealth.           (d) That her marriage life was one of the constant           friction with her husband.           (e) That  due to  her foolish actions, her husband           became more and more unhappy. It is as a result of           domestic unhappiness  created by  her that  Sanjay           Gandhi to  drown his  sorrow took  to flying.  His           flying in  the plane  which ultimately crashed and           in which  he  died  as  a  direct  result  of  her           misconduct.           (f)  That  she  was  totally  indifferent  to  her           husband’s death.           (g) That she left her mother-in-law’s home because           she was denied a Parliamentary Seat.           (h) That  she had  no love for her husband and she           should be ashamed of herself. Why the  High Court held that material facts and particulars are absent and had not disclosed a cause of action? 814 The High Court observed as under :-           "In  this   connection  learned  counsel  for  the           respondent has  also referred to the averment that           the said  statement "were reasonably calculated to           prejudice  the   prospects  of   the  petitioner’s           election". Similarly,  he refers to statements (b)           contained in  the paragraph wherein an observation           is  made   that  "the   insinuation  is  that  the           petitioner  is   possessed  of   wealth  corruptly           made.........."  The   contention  is  that  these           averments  would   apply  to  Smt.  Maneka  Gandhi           personally as if she was the petitioner and not to           Ch. Azhar  Hussain  the  present  petitioner.  Ch.           Azhar Hussain  was not contesting the election, he           was  only   a  voter.   The  statement  "that  the           petitioner’s  election   were  calculated   to  be

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         prejudiced" or  that "the petitioner was possessed           of wealth  corruptly made" was wholly inapplicable           to the  petitioner Ch.  Azhar  Hussain  and  could           certainly apply  to Smt.  Maneka  Gandhi.  It  is,           therefore, urged that this pleading is not made by           the petitioner  himself and  therefore, cannot  be           looked into.  Realising the  error the  petitioner           has applied  for  amendment  to  the  petition  to           mention that  the statements  were  calculated  to           prejudice the leader of the petitioner’s political           party and  that regarding possession of wealth, it           related  to   the  leader   of  the   petitioner’s           political party,  namely, Smt.  Maneka Gandhi.  It           appears to  me that, as pointed out by the learned           counsel for the respondent, the proposed amendment           changes the  entire nature of the pleading in this           paragraph and is not merely a clerical mistake. It           is an indication of the fact that the pleading has           been made  without an  application of  mind and it           seems  to  me  that  it  is  hit  by  one  of  the           principles set  forth in  Section 86(5) of the Act           for which  an amendment  must not be allowed. I am           not satisfied  that the  proposed amendment  could           justly be  allowed and  therefore, must fail. On a           consideration of  all the  matters, I  would  hold           that  the   pleading  in  this  paragraph  is  not           sustainable, suffers  from lack  of material facts           as a  result of  non-application of  mind  of  the           petitioner himself and is irrelevant." 815 Whether the  High Court  was right  in taking  the aforesaid view :-      There is  no averment  to show that the publication was made with the knowledge or consent of the returned candidate when the  book was published in June, 1983. In fact, in 1983 there was no question of having acted in anticipation of the future  elections   of  1985  and  in  anticipation  of  the respondent contesting  the same.  In the  election  petition even the  offending paragraphs  have not  been  quoted.  The petitioner  has  set  out  in  paragraphs  (a)  to  (h)  the inferences drawn  by him  or the  purport according  to him. This apart,  the main  deficiency arises  in  the  following manner.  The  essence  of  the  charge  is  that  this  book containing alleged  objectionable material  was  distributed with the consent of the respondent. Even so strangely enough even a bare or bald averment is not made as to :      i) whom the returned candidate gave consent ;      ii) in what manner and how ; and      iii) when and in whose presence the consent was given, to distribute  these books  in the constituency. Nor does it contain any  material particulers as to in which locality it was distributed  or to  whom it  was distributed, or on what date it  was distributed.  Nor are any facts mentioned which taken at  their face value would slow that there was consent on  the   part  of   the  returned   candidate.  Under   the circumstances it  is difficult  to comprehend  how exception can be taken to the view taken by the High Court. GROUND XIV :      Alleged corrupt  practice as incorporated in ground No. XIV reads thus :-           "That during  the  same  campaign  in  the  Amethi           constituency, another  booklet in  Hindi with  the           photograph of  the respondent  on the  cover  page           under  the   title  "Rajiv   Kyon"   (Why   Rajiv)           purporting

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816           to  be   written  by   one  Jagdish   Pyush,   was           distributed  in   lacs  by   the  respondent,  his           election agent and a large number of other persons           with the  consent of  the  respondent  and/or  his           election agent.  On the  third page  of  the  said           pamphlet occurs the following sentences :           "Amethi is the place where Rajiv’s younger brother           did his  principal work. If Maneka was in sympathy           with the  desires of  the late  Sanjay Gandhi  why           would she  not run  an orphanage  in  Amethi.  Why           would she  not serve  the helpless  poor  and  why           would she  not employ  her vast  assets (Arbon  Ki           Sampati)  (of   hundres   of   crores)   in   some           constructive work.....  The  same  conspiratorials           and mischievous elements who had painted the hands           of Sanjay  Gandhi and  Maneka yellow  and the same           foreign powers,  disruptionists and enemies of the           country who got Maneka out of her family home, are           now wanting  to make  a Razia Sultan or Noor Jahan           and  seeing  her  in  those  roles.  These  people           (obviously including  the petitioner)  not  merely           desired the partition of Smt. Gandhi’s family, not           only the partition of Amethi and Rai Bareilly, but           also partition  of the people and partition of the           country. The very people who want another Pakistan           in India,  who want Khalistan are the very persons           who are  tinkering with the progress of Amethi and           cannot permit  the widow of Sanjay Gandhi to be in           the company  of the  country’s loafers, because no           family  of  India  can  permit  its  daughters  or           daughters-in-law and the widow of its loved one to           go about behaving like a vagabond. She is in acute           distress about her late husband’s property. She is           conducting  her  politics  in  his  name.  She  is           abusing her monther-in-law and her brother-in-law.           Having kicked  her family,  she is  now doing  her           dirty deeds  (Gulchhade Uda  Rahai Hai) in a house           which costs  Rs. 80,000  annual rent......  Social           reformers  had   not  advocated   the  pursuit  of           ambitions by  widows and  in the  same  vein,  the           pamphlet  proceeds   to  state  in  other  context           thereafter that  the petitioner moved about in the           company of traitors. She has exploited the 817           person  of   her  innocent   child  for  political           purpose. For  power and  pleasure, Maneka  can  do           anything. The  petitioner  says  that  the  entire           trend  of   this  pamphlet   and  the   propaganda           conducted  on  the  basis  thereof  casts  serious           aspersions  on   the  personal  character  of  the           candidate of  his party.  It accuses  her of being           possessed of  corrupt  wealth,  disregard  of  her           husband’s wishes,  breaking  of  family  ties  for           political ambitions not conforming to the standard           of conduct  expected of  a widow,  keeping company           with  questionable   characters  capable   of  any           immoral action  for pleasure  of the body and even           exploiting  her   innocent  child   for  her   own           advancement. All these aspersions were extensively           published with  the knowledge  and consent  of the           respondent, as  well as,  with the  knowledge  and           consent of his election agent and by other persons           with the  consent of  the  respondent  and/or  his           election agent.  The publisher of this pamphlet is

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         an important  political worker  of the Respondent.           He  is   a  member   of  his  party  and  campaign           extensively for  the respondent  and his  company.           The publication,  printing and circulation thereof           and the propaganda based thereon was in any event,           done by  the agents  of the respondents and in the           interest of  the election  of the respondent. Each           of these  statements is  false. The respondent and           others who  made or  repeated the  same,  believed           them to  be false.  At  any  rate,  they  did  not           believe them  to be  true. These statements are in           relation to  the personal  character or conduct of           the candidate  and they  are in  relation  to  her           candidature.  These   statements  were  reasonably           calculated  to  prejudice  the  prospects  of  her           election. The  election of  the respondent is thus           liable  to   be  declared   void   under   section           100(1)(b). This  was also  liable to  be set aside           under  section   100(1)(d)(ii),  inasmuch  as  the           result of  the election  in so far as it concerned           the  returned   candidate  has   been   materially           affected by this gross corrupt practice. A copy of           the booklet Rajiv Kyon will be filed as Ex. ’Q’." Why the  High Court held that material facts and particulars are absent and had not disclosed a cause of action? 818           In this connection, the High Court observed :-           "While undoubtedly these allegations relate to the           personal character  and  conduct  of  Smt.  Maneka           Gandhi, the  elements of  law required  by Section           123(4) of  the Act  have not been specifically set           out. As  already held,  it was  the  duty  of  the           petitioner to  make his  choice of  the particular           person with  whose consent  the statement was made           or  distributed.   According  to   the  petitioner           himself it  was not  made by the respondent but by           one Jagdish  Piyush.  The  petitioner  instead  of           pinpointing the  particular person who distributed           the  booklet   or  with   whose  consent   it  was           distributed made  a broad and vague statement that           was done  by the respondent, his election agent, a           large number  of other  persons with  his  consent           and/or with the consent of his election agent. The           date, time and place of distribution, the names of           the agents  or persons who distributed it have not           been indicated  and, therefore,  the  pleading  is           vague and cannot be sustained." Whether the  High Court  was right  in taking  the aforesaid view:-      On a  scrutiny of  the averments  made in  the election petition it  is evident that it is not pleaded as to who has distributed the pamphlets, when they were distributed, where they were  distributed and to whom they were distributed, in whose presence  they were  distributed etc. etc. pleading is ominuously silent  on these  aspects. It  has not  even been pleaded that  any particular  person with the consent of the respondent  or  his  election  agent  distributed  the  said pamphlets. (in  fact it  has  been  stated  by  the  learned counsel for  the respondent  that no election agent has been appointed by the respondent during the entire elections).      The pleading  therefore does not spell out the cause of action. So  also on  account of  the failure  to mention the material facts,  the Courts  could not  have  permitted  the election petitioner  to adduce  evidence on  this point.  It would therefore  attract the  doctrine laid  down  in  Nihal

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Singh’s case and then would be nothing for the respondent to answer. 819 Ground No. XV: Alleged corrupt  practice as  incorporated in  ground No. XV reads as under :_           "That during  the  course  of  the  campaign,  the           respondent,  his  election  agent  and  his  party           brought into  existence a  propaganda committee to           further  the   prospects   of   the   respondent’s           election. This  committee was  called the  "Amethi           Matdata Parishad".  Through  the  agency  of  this           Committee, the  respondent, his election agent and           others with  their consent  and  knowledge  caused           another pamphlet  to  be  printed,  published  and           circulated during  the  entire  election  campaign           under the  title "How do Intelligent people think?           who is an obstacle in the progress of Amethi". The           said pamphlet  inter alia,  contains the following           statements :-           ’That Maneka  Gandhi is  surrounded only  by anti-           social elements.  She was also seen in the company           of terrorists.  Her whole  campaign  is  based  on           money ..... In my view, Maneka seems to have a big           hand in the fire of Punjab. Maneka has no merit of           her own. If she had anything in her, it would have           come out  before her  marriage to Sanjay....If she           had any  desire for  leader-ship or service of the           country,  she   would  have  corporated  with  her           husband. Politics is for her a pursuit of pleasure           ("Shaukiya Dhandha"). Therefore, she is conducting           her politics  on the  strength of people like Haji           Masthan and  Virendra Shai....  A woman  who could           not protect  the honour  of a  vast  country  like           India.... Maneka is the destroyer of the country’.           The petitioner  says that the entire trend of this           pamphlet and the propaganda conducted on the basis           thereof casts  serious aspersions  on the personal           character of a candidate. Each of these statements           is false  to the  knowledge of the respondents and           others. The  printing, publication and circulation           of the  said pamphlet  and  the  propaganda  based           thereon was, in any event, done by the agents of 820           the respondent and in the interest of the election           of  the   Respondent.  These   statements  are  in           relation to the personal character or conduct of a           candidate  and   they  are   in  relation  to  her           candidature.  These   statements  were  reasonably           calculated  to  prejudice  the  prospects  of  the           petitioner’s  election.   The  election   of   the           respondent is  thus liable  to  be  declared  void           under section  100(1)(b). This  was also liable to           be  set   aside  under   section  100(1)(d)  (ii),           inasmuch as  the result, of the election in so far           as it  concerned the  returned candidate, has been           materially  affected   by   this   gross   corrupt           practice.           In this  pamphlet, the  same Jagdish Piyush who is           referred to  in  the  pamphlet  in  the  preceding           paragraphs, is one of the contributors and in that           contribution, he  has referred  to his publication           mentioned in the previous paragraphs". Why the  High Court held that material facts and particulars are absent and did not disclose a cause of action?

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The High Court observed :           "The petitioner  has set  out specific  statements           from this  pamphlet commenting  adversely  on  the           character and  conduct of Smt. Maneka Gandhi where           inter alia,  her association  with terrorists  and           other persons  of questionable antecedents was set           out. It  has been stated that these statements are           false to the knowledge of the respondent and other           and the  pamphlet was distributed by the agents of           the respondent  in the interest of the election of           the respondent  and that the result, so far as the           respondent  is   concerned,  has  been  materially           affected by  the corrupt  practice. Here also, the           petitioner has  made an  omnibus statement  of the           printing,  publication   and  circulation  of  the           pamphlet by the respondent, his election agent and           others with  their consent  and knowledge  without           trying to  pinpoint the  particular person who had           done so.  The places,  dates where  the  pamphlets           were 821           distributed have  also not  been indicated. It was           necessary for  the petitioner  to do under the law           as set  out  above.  The  pleading  is  therefore,           vague, embarrassing  and lacks  in material  facts           and, therefore, must fail. The petitioner’s prayer           for an  amendment to delete the proposal to file a           copy of  the pamphlet is allowed as it is evidence           and not integral part of the petition". Whether the  High Court  was right  in taking  the aforesaid view ?      In view of the doctrine laid down in Nihal Singh’s case (supra) as  early as  in 1970,  the High Court was perfectly justified in  taking the  view that  no cause  of action was made out.  For, in the absence of material particulars as to who had printed, published or circulated the pamphlet, when, where and  how it  was circulated  and which  facts went  to indicate the  respondent’s consent to such distribution, the pleading would  not disclose  a cause of action. There would be nothing for the respondent to answer and the matter would fall within  the doctrine  laid down  in Nihal  Singh’s case (supra). The  learned counsel for the appellant is unable to show how  the Court has committed any error in reaching this conclusion.      Thus there  is no substance in the contentions urged by the learned counsel for the appellant in order to assail the judgment of  the High  Court in  the context  of  the  seven charges of  alleged  corrupt  practices  which  the  learned counsel  wanted   to  call   into  aid  in  support  of  his submission. Last submission (ground D supra) :      Counsel for  the appellant  has taken  exception to the fact that the High Court has dismissed the election petition in exercise  of powers  under Order 7 Rule 11 of the Code of Civil Procedure notwithstanding the fact that under the said provision if  the petition does not disclose cause of action it can  only be rejected (and not dismissed). The contention urged  by   the  learned   counsel  would   have  had   some significance if  the impugned  order was  passed before  the expiry of  the period  of  limitation  for  instituting  the election petition. In the present case the election petition was filed on the last 822 day on which the election petition could have been presented having regard  to the  rigid period of limitation prescribed

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by Section  81 of  the Act. It could not have been presented even on  the next  day. Such being the admitted position, it would make little difference whether the High Court used the expression ’rejected’ or ’dismissed’. It would have had some significance if the petition was ’rejected’ instead of being ’dismissed’ before  the expiry of the limitation inasmuch as a fresh  petition which  contained material facts and was in conformity with  the requirements of law and which disclosed a cause  of action  could have  been presented  ’within’ the period of  limitation. In  this backdrop  the High Court was perfectly justified in dismissing the petition. And it makes no difference whether the expression employed is ’dismissed’ or ’rejected’  for  nothing  turns  on  whether  the  former expression is employed or the latter. There is thus no valid ground to interfere with the order passed by the High Court, and the appeal must accordingly fail.      But before the last word is said one more word needs to be said.  The expression  ’corrupt practice’ employed in the Act would  appear to  be rather repulsive and offensive. Can it  perhaps   be  replaced  by  a  neutral  and  unoffensive expression  such  as  ’disapproved  practices’?  Since  this aspect occurred  to us and there is an occasion to do so, we hint at it, and rest content at that.      And now  the last  word. The  appeal is  dismissed.  No costs throughout. A.P.J.                                     Appeal dismissed. 823