REPORTABLE

IN THE SUPREME COURT OF INDIA

CIVIL APPELLATE JURISDICITION

CIVIL APPEAL NO. 638 OF 2007

K.K. Ramachandran Master  …Appellant

Versus

M.V. Sreyamakumar & Ors. …Respondents

J U D G M E N T

T.S. THAKUR, J.

1. Election to the Kerala State Legislative Assembly was  

held in April, 2006.  Among other constituencies that went  

to poll on 29.4.2006 was 029 Kalpetta LA Constituency with

as  many  as  11  candidates  in  the  fray.  The  candidates  

included  the  appellant  as  a  nominee  of  Indian  National  

Congress (I) a constituent of the United Democratic Front  

(‘UDF’  for  short).  Janta  Dal  (S)  a  constituent  of  the  Left  

Democratic  Front  had  set  up  respondent  No.1  as  its  

candidate, while respondent No.2 was sponsored by Bhartiya  

Janata  Party.  Respondents  No.3  and  4  were  similarly  

contesting on the mandate of the Bahujan Samaj Party and  

All India Anna Dravid Munnetta Kazhakam respectively. The  

remaining candidates were all independent. The  result  of  

the election came on 11th of May, 2006, which declared the  

first respondent elected with a margin of 1841 votes over  

the appellant his nearest rival.  Most of the other candidates  

in the fray lost their deposits.  

2. Aggrieved  by  the  election  of  respondent  No.1  the  

appellant filed election petition No.8 of 2006 before the High  

Court  of  Kerala  at  Cochin  alleging  that  the  returned  

candidate  had  committed  several  corrupt  practices  that  

rendered his election liable to be set aside. The petition was  

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contested by the elected candidate inter alia on the ground  

that the same suffered from fatal defects that rendered it  

liable to be dismissed without a trial. The election petition  

did  not,  according  to  the  respondent,  state  either  the  

material  facts  or  give  the  necessary  particulars  so  as  to  

disclose a complete cause of action justifying a trial.  It was  

also alleged that the petition was not properly verified and  

was,  therefore,  liable  to  be  dismissed  on  that  additional  

ground as well. All these contentions urged on behalf of the  

respondent found favour with the High Court resulting in the  

dismissal  of  the  petition  by  the  order  impugned  in  the  

present appeal. The High Court observed that the averments  

made in the petition were insufficient to disclose a complete  

cause of action or give rise to a triable issue.  It found fault  

with the verification of the petition in as much as the same  

did not disclose the source of information on the basis of  

which the election petitioner had made allegations of corrupt  

practices against  the respondent.  The verification did not,  

according to the High Court, make any distinction between  

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what was true to the knowledge of the petitioner and what  

he believed to be true on the basis of information received.

3. Section  86  of  the  Representation  of  People  Act  

mandates  that  the  High  Court  shall  dismiss  an  election  

petition if the same does not comply with the provisions of  

Sections 81, 82 or 117 of the said Act.  Sections 81, 82 and  

117 of the Act deal with presentation of the petition, parties  

to the petition and security for costs. It is common ground  

that the election petition filed by the appellant in the instant  

case did not suffer from any defect relatable to any one of  

the said three provisions. Dismissal of the election petition  

by  the  order  impugned  in  this  appeal  is,  not  therefore,  

referable to Section 86 of the Act, which implies that the  

High  Court  has  dismissed  the  election  petition  on  the  

premise that  the averments  made in the election petition  

alleging  commission  of  corrupt  practices  do  not  disclose  

material  facts  as  required  under  Section  83  of  the  Act.  

Section 83 reads as under:-

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“83. Contents of petition.—(1) An election  petition—

(a) shall contain a concise statement of the  material facts on which the petitioner relies;

(b)  shall  set  forth  full  particulars  of  any  corrupt  practice  that  the  petitioner  alleges,  including as full  a statement  as possible  of  the  names  of  the  parties  alleged  to  have  committed such corrupt practice and the date  and  place  of  the  commission  of  each  such  practice; and

(c)  shall  be  signed  by  the  petitioner  and  verified in the manner laid down in the Code  of Civil Procedure, 1908 (5 of 1908) for the  verification of pleadings:

[Provided  that  where  the  petitioner  alleges  any corrupt  practice,  the petition shall  also  be  accompanied  by  an  affidavit  in  the  prescribed form in support of the allegation  of  such corrupt practice and the particulars  thereof.]

(2) Any schedule or annexure to the petition  shall  also  be  signed  by  the  petitioner  and  verified in the same manner as the petition.]”

4. There is in the light of the above no gainsaying that an  

election  petition  must  contain  a  concise  statement  of  the  

material facts on which the petitioner relies and set forth full  

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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  practices  

and  the  date  and  place  of  the  commission  of  each  such  

practice.  It also requires that the petition be signed by the  

petitioner and verified in the manner laid down in the Code  

of Civil Procedure for the verification of the pleadings.

5. The  provisions  of  Section  83  (supra)  have  fallen  for  

interpretation  in  several  cases  leading  to  a  long  line  of  

decisions that have understood the said provisions to mean  

that  while  an election  petition  must  necessarily  contain  a  

statement of material  facts, deficiency if  any, in providing  

the particulars of a corrupt practice could be made up by the  

petitioner  at  any  later  stage.  The  provision  has  been  

interpreted  to  mean  that  while  a  petition  that  does  not  

disclose material facts can be dismissed as one that does not  

disclose  a  cause  of  action,  dismissal  on  the  ground  of  

deficiency or non-disclosure of particulars of corrupt practice  

may  be  justified  only  if  the  election  petitioner  does  not  

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despite  an  opportunity  given  by  the  Court  provide  the  

particulars and thereby cure the defect. We do not consider  

it  necessary to refer  to  all  the decisions delivered on the  

subject as reference to some only of such decisions should in  

our opinion suffice.

6. In  Samant  N.  Balkrishna v.  George  Fernandez,  

(1969)  3 SCC 238  this  Court  held  that  Section  83  was  

mandatory  and requires  the election petition  to contain  a  

concise statement of material facts and the fullest possible  

particulars of the corrupt practices if any alleged.  The use of  

word “material facts” observed by the Court shows that facts  

necessary to formulate a complete cause of action must be  

stated. Omission of a single material fact could consequently  

lead  to  an  incomplete  cause  of  action.  The  function  of  

particulars is however only to present a full picture of the  

cause of action with such further information in detail as is  

sufficient to make the opposite party understand the case he  

is  called  upon  to  meet.  There  may  be  some  overlapping  

between material facts and particulars but the two are quite  

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distinct,  observed the court.   Material  facts  will  show the  

ground of corrupt practice and the complete cause of action  

while particulars will give necessary information to present a  

full picture of the same.   

7. In  Raj Narian v.  Indira Nehru Gandhi,  (1972) 3  

SCC 850,  this  Court  had another opportunity to interpret  

the provisions of Section 83 and to cull  out the principles  

that would determine whether an election petition complied  

with  the  requirement  of  the  said  provision.  This  Court  

cautioned  that  just  because  a  corrupt  practice  has  to  be  

strictly proved did not mean that a pleading in an election  

proceedings  should  receive  a  strict  construction.  Even  a  

defective  charge,  observed  the  Court,  did  not  vitiate  a  

criminal  trial  unless  it  was  proved  that  the  same  had  

prejudiced  the  accused.   If  a  pleading  on  a  reasonable  

construction  could  sustain  the  action,  the  court  should  

accept  that  construction  and  be  slow  in  dismissing  an  

election petition lest it frustrates an action only on technical  

grounds. The court also observed that a charge of corrupt  

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practice is no doubt a very serious charge but the court has  

to  consider  whether  the  petitioner  should  be  refused  an  

opportunity  to prove the allegations  made by him merely  

because  the  petition  was  drafted  clumsily.  The  following  

passages from the decision in Raj Narain’s case (supra) are  

apposite in this regard:   

“While  a  corrupt  practice  has  got  to  be  strictly  proved  but  from  that  it  does  not  follow  that  a  pleading  in  an  election  proceeding  should  receive  a  strict  construction. This Court has held that even a  defective charge does not vitiate a criminal  trial  unless  it  is  proved that  the same has  prejudiced  the  accused.  If  a  pleading  on  a  reasonable  construction  could  sustain  the  action,  the  court  should  accept  that  construction.  The  courts  are  reluctant  to  frustrate an action on technical grounds.     

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The charge of corrupt practice in an election  is a very serious charge. Purity of election is  the  very  essence  of  real  democracy.  The  charge in question has been denied by the  respondent. It has yet to be proved. It may  or may not be proved. The allegations made  

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by the appellant may ultimately be proved to  be wholly devoid of truth. But the question is  whether the appellant should be refused an  opportunity to prove his allegations? Should  the  court  refuse  to  enquire  into  those  allegations merely because the appellant or  someone who prepared his brief did not know  the  language  of  the  law.  We  have  no  hesitation  in  answering  those  questions  in  the negative.

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If the allegations made regarding a corrupt  practice do not disclose the constituent parts  of the corrupt practice alleged, the same will  not  be  allowed  to  be  proved  and  further  those  allegations  cannot  be  amended  after  the period of limitation for filing an election  petition; but the court may allow particulars  of any corrupt practice alleged in the petition  to be amended or amplified.

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Rules of pleadings are intended as aids for a  fair trial and for reaching a just decision. An  action  at  law  should  not  be  equated  to  a  game  of  chess.   Provisions  of  law  are  not  mere  formulae  to  be  observed  a  rituals.  Beneath  the  words  of  a  provision  of  law,  generally  speaking,  there  lies  a  juristic  

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principle.  It  is  the  duty  of  the  court  to  ascertain that principle and implement it.”

8. The above principles have been reiterated by this Court  

in  H.D. Revanna v.  G. Puttaswamy Gowda,  (1999) 2  

SCC 217; V.S. Achuthanandan v. P.J. Francis, (1999) 3  

SCC 737; Mahendra Pal v. Ram Dass Malanger, (2000)  

1 SCC 261 and  Sardar Harcharan Singh Brar v.  Sukh  

Darshan Singh, (2004) 11 SCC 196.

9. Reference  may  also  be  made  to  Harkirat  Singh v.  

Amrinder Singh,  (2005) 13 SCC 511, where this Court  

reiterated  the  distinction  between  material  facts  and  

particulars  and held  that  while  material  facts  are primary  

and  basic  facts  which  must  be  pleaded  by  the  plaintiff,  

particulars are details in support of such material facts. They  

simply amplify,  refine and embellish the material  facts by  

giving distinctive touch to the basic  contours  of  a picture  

already drawn so as to make it more clear and informative.  

Particulars  thus ensure conduct  of  a  fair  trial  so that  the  

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opposite party is not taken by surprise.  To the same effect  

is  the  decision  of  this  Court  in  Umesh Challiyil v.  K.P.  

Rajendra, (2008) 11 SCC 740, where the Court held that  

even if the respondents raised an objection in his counter  

affidavit  and the appellant  had despite the opportunity to  

cure the defect pointed out by the respondent did not do so  

yet an election petition cannot be dismissed on the ground  

that  the  petitioner  had  not  cured  any  such  defects.  The  

petitioner was entitled to bona fide believe that the petition  

is  in all  respects  complete and if  the High Court  found it  

otherwise it would give an opportunity to him to amend or  

cure the defect.  This court also held that while dealing with  

election  petitions  the  Court  should  not  adopt  a  technical  

approach  only  to  dismiss  the  election  petitions  on  the  

threshold.   

10. In  Virender Nath Gautam v.  Satpal Singh,  (2007)  

3 SCC 617, this Court made a distinction between the need  

for supporting material facts and the means by which such  

facts are proved by the party alleging the same:

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“There is distinction between facta probanda  (the facts required to be proved i.e. material  facts)  and  facts  probantia  (the  facts  by  means  of  which  they  are  proved  i.e.  particulars or evidence).  It is settled law that  pleadings must contain only facta probanda  and not facta probantia.  The material facts  on  which  the  party  relies  for  his  claim are  called  facts  probanda  and  they  must  be  stated in the pleadings.  But the facts or facts  by means of which facta probanda (material  facts) are proved and which are in the nature  of  facta  probantia  (particulars  or  evidence)  need not be set out in the pleadings.  They  are not facts in issue, but only relevant facts  required to be proved at the trial in order to  establish the fact in issue.”    

11. The question whether a defect in the verification of the  

pleading is fatal is also no longer res integra in the light of  

the decision in  F.A. Sapa v. Singora,  (1991) 3 SCC 375  

and  Sardar Harcharan Singh Brar’s  case (supra) where  

this  Court  held  that  defective  verification  or  affidavit  is  

curable.  What  consequences,  if  any,  may  flow  from  an  

allegedly defective affidavit, is required to be judged at the  

trial of an election petition but such election petition cannot  

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be dismissed under Section  86(1) of the Act for any such  

defect.

12. Coming  then  to  the  facts  of  the  case  at  hand  the  

appellant had challenged the election of respondent No. 1 on  

the ground that the latter had committed corrupt practices  

within the meaning of Section 123(1)(A), 123(4), 123 (5)  

and 123(6)  apart  from violating the provisions  of  Section  

127A and 133 of the Representation of People Act and Rules  

86 and 90 of the Conduct of Election Rules, 1961. In the  

course  of  the  hearing  before  us,  however,  the  appellant  

confined  his  challenge  to  the  election  on  the  grounds  

referable to Section 123(4), 123(5) and 123(6) of the Act  

only.  

13. Section  123(4)  of  the  Act  makes  publication  of  any  

statement of fact which is false, and which relates to the  

personal  character  or  conduct  of  any  candidate  a  corrupt  

practice if  any such statement is  reasonably calculated to  

prejudice the prospects of  that candidate’s  election and if  

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such  publication  has  been  made  by  a  candidate  or  his  

election agent or by any other person with the consent of  

the candidate or his election agent.   

14. The appellant’s case as set out in the election petition  

is that a notice in the form of a newspaper under the title  

‘Janasabdam’ was printed, published and circulated by the  

first  respondent  and  his  election  agent  containing  totally  

false,  defamatory,  incorrect  and  baseless  allegations,  

deliberately intended to lower the dignity, status, reputation  

and personality of the petitioner amongst the voters of his  

constituency.  According  to  the  averments  made  by  the  

appellant in paragraph 6 of the election petition, the said  

notice/newspaper was published at the Mathrubhumi Press,  

Kozhikode  in  the  name  of  one  Rasheed  whose  age  and  

address is not known to the appellant but who according to  

the publication  was said  to be the Joint  Secretary,  Media  

Trust,  Sulthan  Bathey.  The  averments  made  by  the  

appellant in the election petition further state that one Mr.  

M.P. Veerendrakumar, the father of the respondent No.1 is  

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the  Managing  Director  of  “Mathurbhumi”  Daily  in  whose  

press  the  aforementioned  notice/newspaper  titled  

‘Janasabdam’  was  published.   It  is  also  the  case  of  the  

appellant  that  although  only  35  thousand  copies  of  the  

notice are said to have been printed but actually as many as  

1,20,000  copies  were  printed,  published  and  distributed  

from  door  to  door  in  all  the  nooks  and  corners  of  the  

constituency by the first respondent, his election agent and  

other agents and active workers. The election petition finds  

fault  with the publication of the said notice/newspaper on  

several  counts.  Firstly,  it  is  alleged  that  the  

notice/newspaper carried a news item under the title “The  

Health Minister directly do priest hood for bribe” in which the  

appellant  was  accused  of  bribery  in  connection  with  the  

appointment  of  part  time  sweepers  in  Health  Service  

Department in Wynad District. The news item read that the  

appellant  had  demanded  Rs.25,000  to  Rs.50,000  for  

providing appointments and another amount of Rs.25,000 to  

Rs.50,000  for  regularizing  such  appointments.  The  news  

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item alleged that the appellant had entrusted his Additional  

Private  Secretary  with  the  duty  of  collecting  the  bribe  

amount from the candidates. The statements made in the  

newspaper were, according to the appellant, totally baseless  

and  deliberately  cooked  up  with  a  view  to  lowering  the  

dignity and status of the appellant in the estimation of the  

electorate  by  tarnishing  the  image  of  the  appellant  and  

thereby  with  a  view  to  gaining  undue  advantage  for  

respondent No.1 in the election process.   

15. Secondly,  it  finds  fault  with  the  publication  

aforementioned in as much as the same carried a news item  

under  the  heading  ‘The  representative  of  people  who  

brought shame to Wynad’ under which caption it was alleged  

that the Kerala Lok Ayukta had prima facie found a case  

against the appellant and issued a notice to him. According  

to the appellant,  the Lok Ayukta had found a prima facie  

case  against  the  appellant  but  the  same  was  in  utter  

violation  of  the  principles  of  natural  justice  and  without  

affording any opportunity of being heard to the petitioner.  

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The  Division  Bench  of  the  High  Court  of  Kerala  had,  

therefore, stayed the finding of the Lok Ayukta which stay  

order  was  in  force  even  on  the  date  of  the  filing  of  the  

petition.  The appellant  alleged  that  the  publication  of  the  

news  item  in  ‘Janasabdam’  referred  to  above  created  a  

strong impression in the mind of an average person that the  

appellant was a very corrupt, wicked and crooked person,  

not committed to the welfare of the people.   

16. Thirdly, the appellant found fault with the publication of  

a news item in the very same newspaper/notice under the  

title ‘The phone call that trapped the Minister’. The appellant  

alleged that he never sought any assistance or issued any  

direction to the DMO at any juncture and that he had never  

threatened or coerced the officer over the mobile phone as  

was alleged in the said news item. So also the news item  

under the caption ‘Be aware!  Bigger  than bitten is  in the  

hole’  and  ‘The  game  has  to  be  played  is  not  the  game  

already  played’  were  highly  defamatory  and  deliberately  

made to tarnish the dignity and status of the appellant in the  

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minds of the voters and to prejudicially affect the prospects  

of his election schedule to be held on 29th April, 2006.  

17. A reading of the averments made in paragraphs 13 to  

23 of the election petition would show that the same gave  

particulars  of  how the published material  was transported  

from  Kozikode  to  the  residential  house  of  the  first  

respondent at Puliyarmala in Kalpetta by 11.30 p.m. on 26th  

April, 2006 and how the same were split into small bundles  

consisting of 80 to 100 copies per bundle and how 8 to 12  

bundles  each  were  distributed  among  143  booths  of  the  

constituency on 28th April, 2006 between 8.00 a.m. to 5.15  

p.m.  by  the  first  respondent,  his  election  agent,  polling  

agents,  other  agents,  workers  and  campaigners  with  the  

consent  and  connivance  of  the  first  respondent.  The  

averments in these paragraphs not only give the registration  

numbers  of  the  vehicles  in  which  the  material  was  

transported but also the names of the persons who actually  

distributed  the  said  material  amongst  the  voters  of  the  

constituency.   The names of the persons who informed the  

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appellant about the distribution of the printed material have  

also been indicated by the appellant in sufficient details.  For  

instance, according to the averments made in paragraph 14  

of  the  petition  at  booth  no.120  of  the  constituency,  the  

printed material referred to earlier was distributed to various  

houses  by  one  Mr.  Ealias  son  of  Ouseph,  Kunnathukudy  

House, Trikkaipatta, Meppady, Wynad District and by others  

named in the said paragraph.  This distribution work was,  

according to the appellant, with the consent and connivance  

of respondent No.1. So also details of the printed material at  

other booths in the constituency and other members relating  

to the distribution of the said material have been set out in  

sufficient  detail  in  paragraphs  15  to  23.   The  election  

petition specifically alleges that the printing, publication and  

distribution  of  the  material  by  the  first  respondent,  his  

election agent and other agents, workers and campaigners  

was  with  his  consent  and  connivance  which  materially  

affected  the  result  of  the  election  in  so  far  as  the  same  

concerned the appellant and the returned candidate.   

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18. Apart  from  the  publication  of  the  notice  titled  

‘‘Janasabdam” the election petition also refers to publication  

of  an  incorrect,  baseless  and  false  news  item  in  

‘Mathrubhumi Daily’ dated 28th April, 2006 at the instance of  

the respondent by Shri M.P. Veerendrakumar, the father of  

the  said  respondent  under  the  caption  ‘MLA  cancels  the  

consented  works’.   Paragraph  29  of  the  election  petition  

specifically  alleged  that  the  said  publication  was  at  the  

instance  of  the  first  respondent  in  which  it  was  falsely  

alleged  that  the  appellant  had  cancelled  the  sanction  

granted for effecting improvements to four roads, under the  

Special Development Fund. The petition alleged that the four  

roads mentioned passed through more than 10 booths of the  

constituency  of  Kalpetta  Legislative  Constituency  of  which  

14000  people  of  the  constituency  were  regular  

beneficiaries/users.  The  appellant  alleged  that  the  

publication of the baseless and false news item on the eve of  

the election scheduled to be held on 29th April, 2006 without  

affording  an  opportunity  to  explain  the  real  facts  to  the  

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public as well as to the affected voters was totally mala fide  

and  was  calculated  to  prejudicially  affect  his  election  

prospects.  Another publication made in Mathrubhumi Daily  

issue dated 29th April, 2006 under the caption ‘Allegations by  

Priest  against  former  Minister  Ramachandran’  were  also,  

according to the appellant, false and made at the instance of  

the first respondent. In the said news item the appellant had  

been  accused  of  demanding  rupees  one  lakh  from  a  UD  

Clerk in the Primary Health Centre also working as Priest of  

Moolamattom  St.  George  Orthodox  Church.  The  petition  

alleged that the allegation that the appellant had demanded  

bribe from the said person who was suspended from service  

by  the  Health  Services  Authorities  upon  inspection,  was  

totally false, baseless and cooked up at the instance of the  

first  respondent  and published in  the Mathrubhumi  at  his  

instance.  The appellant alleged that the publication of such  

a damaging news item which was totally false, baseless and  

motivated on the eve of the election was intended to cause  

irreparable loss to the appellant by creating confusion and  

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doubts about his character,  personality and dignity in the  

minds  of  the  electorate  city  those  belonging  to  Christian  

faith.  The  petition  also  refers  to  the  publication  of  a  

photograph of Fr. George Vakkanampadam in the cassock to  

create  emotional  distress  for  the  Christian  electorate  by  

giving an impression as though the appellant had not only  

illegally suspended but also demanded bribe from the said  

Mr.  Vakkanampadam  and  delayed  completion  of  the  

disciplinary proceedings against him. The appellant alleged  

that publication of the news item was mala fide and intended  

to prejudice his electoral prospects.  

19. The election petition further alleged that another news  

item published in the ‘Deshabhimani  Daily dated 6th April,  

2006 with the title ‘What is happening at the Kalpetta is the  

people’s trial against corruption – Sreyamskumar’ in which  

the first respondent is alleged to have accused the appellant  

of indulging in corrupt practices throughout.   The election  

petition alleged that the publication of the said news item  

was  mala  fide  and  with  intention  to  cause  prejudice  and  

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harassment to the petitioner and to secure undue advantage  

to the first respondent.   

20. Apart  from  the  publication  mentioned  above  the  

appellant also accused the first respondent of making a false  

statement in a public speech delivered by him on 27th April,  

2006  in  which  the  first  respondent  delivered  a  talk  at  

Kalpetta  near  the  bus  stand  attended by  500  persons  at  

4.30  p.m.  alleging  that  the  Lok  Ayukta  had  issued  a  

direction to arrest  and produce the appellant on 6th June,  

2006 and his arrest was delayed due only to the ensuing  

election. The election petition also alleged that a similar talk  

was  delivered  by  Mr.  U.A.  Khader,  Councillor,  Kalpetta  

Municipality,  who  was  actively  supporting  the  first  

respondent and by Shri V.P. Varkey son of Paily, Vattathody  

House, Vazhavatta P.O., Wynad who was functioning as the  

District President of Kisan Janata of Wynad for and on behalf  

of  the  first  respondent,  as  duly  authorized  by  the  first  

respondent.  The  election  petition  also  referred  to  a  talk  

delivered  by  Shri  K.K.  Hamsa,  who  is  the  State  General  

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Secretary of Janata Dal (S) at Meppady town on 27th April,  

2006 alleging that Lok Ayukta had issued an arrest warrant  

against  the  appellant.  The  persons  who  informed  the  

appellant  about  the  said  talks  allegedly  containing  

accusations against the appellant have also been set out in  

the election petition.   

21. We  do  not  consider  it  necessary  to  refer  in  further  

details to the specific averments made by the appellant in  

support of the charge that respondent No.1 had committed  

corrupt practices within the meaning of Section 123(4) of  

the Representation of People Act.  All that we need to say is  

that the averments made in the election petition sufficiently  

disclose  a  cause  of  action.  The  averments  set  out  the  

material facts & give sufficient particulars that would justify  

the grant  of  an opportunity  to the appellant  to  prove his  

allegations. In as much as the High Court found otherwise, it  

in our opinion, committed a mistake.  At any rate if there  

was any deficiency in the particulars required to be furnished  

in terms of Section 83(b) of the Act the High Court could  

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and indeed ought to have directed the petitioner to disclose  

and  provide  the  same  with  a  view  to  preventing  any  

miscarriage of  justice  on account of  non-disclosure of  the  

same.  So long the material  facts  had been stated,  which  

were stated in the present case, the absence of particulars,  

if any, could not justify dismissal of the petition by the High  

Court.   

22. What  is  stated  above  is  true  even  in  regard  to  the  

averments made by the appellant in paragraphs 25 and 26  

of the election petition wherein the appellant had accused  

the first respondent of committing a corrupt practice within  

the meaning of Section 123(5) of the Act.  Section 123(5)  

makes hiring and securing of vehicles whether on payment  

or otherwise for the free conveyance of any elector to and  

from any polling station with the consent of a candidate or  

his election agent, a corrupt practice. Paragraph 25 and 26  

of  the  election  petition  specifically  allege  that  the  first  

respondent, his election agent and other agents and workers  

had secured vehicles for transport of the voters to and fro  

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polling stations contrary to Section 123(5) of the Act.  The  

averments made in the said paragraphs not only give the  

registration  numbers  but  also  the  names  of  the  

owners/drivers  of  the  vehicles  used  for  providing  free  

transport of the voters of different booths indicated in the  

said paragraphs.  The averments made in the paragraphs 25  

and  26  of  the  election  petition  constitute  a  statement  of  

material facts required in terms of Section 83A of the Act.  

Although the particulars given in the said paragraphs, in our  

opinion,  give  rise  to  justify  a  trial  yet  if  there  were  any  

deficiency in the disclosure of the particulars the High Court  

could  direct  the  petitioner  to  furnish  the  said  particulars.  

Dismissal of the petition on the ground that the averments  

did not constitute material facts and did not give rise to a  

complete cause of action was not a correct appreciation of  

the said averments.   

23. The same is true even in regard to the averments made  

in  paragraph  35  of  the  election  petition  in  which  the  

petitioner  had  alleged  that  the  respondent  No.1  had  

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committed a corrupt practice within the meaning of Section  

123(6) of the Act by incurring or authorizing expenditure in  

contravention of Section 77.  In paragraph 35 of the election  

petition  the  appellant  had  clearly  alleged  that  the  first  

respondent  had  spent  an  amount  of  Rs.78  lakhs  for  his  

election as against the outer limit of Rs.10 lakhs stipulated  

under Section 77 of the Act read with Rule 90 of the Election  

Rules, 1961.  The averments disclosed in sufficient details  

the basis on which the said allegation was made.

24. In  the  result,  we  allow  this  appeal,  set  aside  the  

impugned order of the High Court and remand the matter  

back to the High Court for disposal of the election petition in  

accordance with the law keeping in view the observations  

made hereinabove.  We make it clear that anything said by  

us  in  the  foregoing  paras  of  this  judgment  shall  not  be  

understood as expression of any final opinion on the merits  

of the case set up by the appellant or the defense set up by  

the respondent  No.1.  The observations  made hereinabove  

are limited to the determination of the question whether the  

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High Court was justified in dismissing the election petition at  

the threshold as it did. The parties are directed to appear  

before  the  High  Court  for  further  directions  on  6th  

September, 2010.  No costs.

……………………………J. (D.K. JAIN)

……………………………J. (T.S. THAKUR)

New Delhi July 6, 2010

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