REPORTABLE

IN THE SUPREME COURT OF INDIA

CIVIL APPELLATE JURISDICTION

CIVIL APPEAL NO.6128 OF 2008

RAM SUKH — APPELLANT  

VERSUS

DINESH AGGARWAL — RESPONDENT

J U D G M E N T

D.K. JAIN, J.:

1. This appeal under Section 116A of the Representation of the  

People  Act,  1951 (for  short  the ‘Act’)  is  directed against  the  

judgment and order dated 15th January, 2008, rendered by the  

High Court of Uttaranchal at Nainital in Writ Petition No.03 of  

2007 (M/S). By the impugned order, the High Court, upholding  

the  preliminary  objection  raised  by  the  first  respondent,  has

dismissed the election petition mainly on the ground that it did  

not  comply  with  the  mandatory  requirement  of  furnishing  

material  facts so as to disclose cause of action and was not  

supported by an affidavit in the prescribed form.

2. Election to the State Legislative Assembly of Uttaranchal (now  

Uttarakhand)  was  held  on  21st February,  2007.   The results  

were declared on 27th February,  2007.  The first  respondent,  

who had contested the election as an Indian National Congress  

candidate,  was  declared  elected.  The  appellant  (hereinafter  

referred to as the ‘election petitioner’) having lost the election,  

as a candidate of the Nationalist  Congress Party,  challenged  

the election of the first respondent by filing an election petition  

under Section 80 read with Section 100(1)(b) and (d) of the Act.  

The election of the returned candidate was challenged mainly  

on the grounds:

(i) that the election petitioner having submitted 2 sets of the  requisite  Form-8  (Praroop-8)  in  respect  of  his  election  agent Manbir Singh Dagur before the Returning Officer,  who  having  obtained  the  signatures  of  the  election  petitioner as also of the polling/election agent in proforma  (Anulagnak-22),  deliberately  did  not  send  the  signed  Anulagnak-22 of the election petitioner to different polling  stations,  with  the  result  that  his  polling  agent  was  not  

2

permitted by the polling officer to act as such on the date  of polls;

(ii) that  the  Returning  Officer  deliberately  delayed  the  distribution  of  Anulagnak-22  at  various  polling  stations  and  on  account  of  inaction  on  his  part,  election  petitioner’s  supporters  got  confused  and  either  did  not  vote or voted in favour of the first respondent, an Indian  National Congress candidate;  

(iii) that  the  first  respondent  put  pressure  on  the  election  petitioner to withdraw from the contest and on his refusal  to do so, a rumour was spread by the first respondent that  the  election  petitioner  had  withdrawn  from the  election  fray and thus the first respondent used corrupt practice;

(iv) that  the  first  respondent  got  a  fabricated  'Fatva'  from  Devband circulated among the Muslim voters asking them  to cast  votes in  his  favour  and thus the Muslim voters  were unduly influenced by the issuance of the aforesaid  religious   Fatva – a corrupt practice;

(v) that the Polling Officers at various polling stations did not  seal  Electronic  Voting  Machines  in  presence  of  the  election  agent  of  the  election  petitioner  and  other  candidates  and  further  before  the  commencement  of  counting  the  Returning  Officer  did  not  get  the  seal  of  strong room certified from any of the polling agents; and

(vi) that  the  Electronic  Voting  Machines  of  various  polling  stations  were  either  changed  or  were  used  after  the  polling  time  was  over,  showing  misuse  of  the  official  machinery  in  support  of  the first  respondent  and,  thus,  putting a question mark on the fairness of the election.  

3. The first  respondent  on being served  with  notice,  instead of  

filing a written statement,  filed an application under Order VI  

Rules 16 and 17 and Order VII Rule 11 of the Code of Civil  

3

Procedure, 1908 (in short ‘the Code’) read with Section 86 of  

the Act raising a preliminary objection to the maintainability of  

the  petition,  inter-alia,  on  the  ground  that  the  petition  was  

lacking in material facts and particulars and was also defective  

for want of requisite affidavit in support of allegations of corrupt  

practice and that since it did not disclose any cause of action, it  

deserved to be dismissed at the threshold. It was pleaded that  

on account of failure on the part of the election petitioner to file  

an  affidavit  in  support  of  his  allegations,  the  entire  election  

petition was liable to be dismissed and allegations of corrupt  

practices made in paragraphs 14, 17, 19, 20 and 21 as well as  

grounds D and E of the election petition were liable to be struck  

off.

4. On consideration of the rival stands, the High Court came to the  

conclusion that the allegations of corrupt practices are entirely  

superfluous in nature; the concise statement of material facts is  

completely lacking and mandatory requirement of an affidavit in  

support  of  the  allegations  of  corrupt  practices  was  also  not  

complied  with.  Relying  on  the  decision  of  this  Court  in  

Ravinder Singh Vs. Janmeja Singh & Ors.1, the High Court  1  2000 (8) SCC 191

4

came to the conclusion that non-filing of affidavit in support of  

the  allegation  of  corrupt  practices,  is  an  incurable  and  fatal  

defect  and,  therefore,  the  election  petition  was  liable  to  be  

rejected  on  that  ground  as  well.  Aggrieved,  the  election  

petitioner is before us in this appeal.          

5. In spite of service, the first respondent – the elected candidate  

has  not  entered  appearance.   Therefore,  we  heard  learned  

counsel appearing on behalf of the election petitioner.

6. It was submitted by learned counsel for the election petitioner  

that the High Court has committed an error of law as well as of  

procedure  in  entertaining  first  respondent’s  application  and  

dismissing  the  election  petition  at  the  threshold.   It  was  

contended  that  the  question  whether  “material  facts”,  as  

contemplated in Section 83 of the Act, had been stated or not,  

cannot  be  decided  without  providing  an  opportunity  to  the  

election  petitioner  to  prove  his  case  upon  trial.   Learned  

counsel  argued  that  if  an  election  petition  is  rejected  at  the  

threshold on account of non-compliance with Section 83 of the  

Act,  it  would amount to reading into Section 86 an additional  

ground for  dismissal  of  the election petition which cannot be  

5

permitted  in  law.   Relying  on  the  Handbook  for  Returning  

Officers  issued  by  the  Election  Commission  of  India  for  the  

guidance of the Returning Officers in the conduct of elections,  

learned counsel submitted that the instructions so issued are  

binding  on  the  Returning  Officers  and,  therefore,  having  

obtained  the  specimen  signatures  of  the  appellant  and  his  

election agent,  it  was obligatory on the part  of  the Returning  

Officer  to  circulate  these  specimen  signatures  to  all  the  

Presiding Officers in the prescribed performa in terms of Para  

12 of Chapter VII of the said Handbook. It was contended that  

this omission on the part of the Returning Officer had materially  

affected the election result.  However, the learned counsel fairly  

conceded  that  since  the  election  petitioner  did  not  file  the  

affidavit as required under proviso to sub-section (1) of Section  

83 of  the Act,  he was not  pressing the ground pertaining to  

corrupt  practice.   Therefore,  the  issue  surviving  for  

consideration is only in relation to alleged violation of Section  

100(1)(d)(iv) of the Act.   

7. Before examining the merits of the issues raised on behalf of  

the election petitioner with reference to the relevant statutory  

6

provisions,  it  would  be  appropriate  to  bear  in  mind  the  

observations of this Court in  Jagan Nath Vs.  Jaswant Singh  

and Ors.2.  Speaking for the Constitution Bench, Mehr Chand  

Mahajan,  C.J.,  had  said  that  the  statutory  requirement  of  

election  law  must  be  strictly  observed  and  that  the  election  

contest is not an action at law or a suit in equity, but is purely  

statutory  proceeding  unknown  to  the  common  law  and  that  

Court possesses no common law power.  It is also well settled  

that the success of  a candidate who has won at  an election  

should not  be lightly  interfered with  and any petition seeking  

such interference must strictly conform to the requirements of  

the law.  Nevertheless, it is also to be borne in mind that one of  

the essentials of the election law is to safeguard the purity of  

the election process and, therefore, the courts must zealously  

ensure that people do not get elected by flagrant breaches of  

that law or by indulging in corrupt practices, as enumerated in  

the Act.

8. In this backdrop, we may now turn to the procedural provisions  

in the Act insofar as they are relevant for our purpose:-

2  [1954] S.C.R. 892 7

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

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

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

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

(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.

8

(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 81 or section 82 or section  117.

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.

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

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

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

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

(5) The High Court may, upon such terms as to costs  and otherwise as it may deem fit, allow the particulars of  any corrupt practice alleged in the petition to be amended  

9

or  amplified  in  such  manner  as  may  in  its  opinion  be  necessary  for  ensuring  a  fair  and  effective  trial  of  the  petition, but shall not allow any amendment of the petition  which will  have the effect of introducing particulars of a  corrupt practice not previously alleged in the petition.

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

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

87. Procedure before the High Court.—(1) Subject to  the  provisions  of  this  Act  and  of  any  rules  made  thereunder,  every election petition shall  be tried by the  High Court, as nearly as may be, in accordance with the  procedure applicable under the Code of Civil Procedure,  1908 (5 of 1908) to the trial of 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 1972), shall,  subject to the provisions of this Act, be  deemed to apply in all respects to the trial of an election  petition."

9. From the afore-quoted provisions,  it  would appear that  Section 81  

enables a petitioner to call in question any election on one or more of  

1

the grounds specified in sub-section (1) of Section 100 of the Act.  

Section 83, the pivotal provision for the present case, requires that:  

(a) the election petition must contain a concise statement of “material  

facts” on which petitioner relies and (b)  he should also set forth “full  

particulars”  of  any  corrupt  practices  which  the  petitioner  alleges.  

Proviso to clause (c) of sub-section (1) of Section 83 also provides  

that  where  the petitioner  alleges any corrupt  practice,  the election  

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.  It  is plain that the requirement of disclosure of  

“material  facts”  and “full  particulars”  as stipulated in the Section is  

mandatory.   Section  86 mandates  that  where the  election  petition  

does not comply with the provisions of Section 81 or Section 82 or  

Section 117 of the Act, the High Court should dismiss the election  

petition.  Section 87 which lays down the procedure required to be  

followed by the High Court while trying an election petition, requires  

that  every election petition shall  be tried,  as nearly  as may be,  in  

accordance with the procedure applicable under the Code to the trial  

of the suits, subject of course to the provisions of the Act and of any  

requirement made thereunder.  

1

10. It is evident that controversy in this appeal lies in a narrow compass.  

It revolves around the ambit of Section 83 of the Act.  The point for  

consideration is whether the election petition lacked “material facts”  

required to be stated in the election petition in terms of Section 83(1)  

of the Act and if so, could it be dismissed summarily without trial?   

11. As already noted, it is mandatory that all “material facts” are set out in  

an election petition and it  is also trite that if  material  facts are not  

stated  in  the  petition,  the  same is  liable  to  be  dismissed  on  that  

ground alone.  Therefore, the question is as to whether the election  

petitioner had set out “material facts” in his petition?

12. The phrase “material facts” has neither been defined in the Act nor in  

the  Code and,  therefore,  it  has  been understood by the courts  in  

general  terms  to  mean  the  entire  bundle  of  facts  which  would  

constitute a complete cause of action.  In other words, “material facts”  

are  facts  upon which  the  plaintiff’s  cause of  action  or  defendant’s  

defence  depends.  (See:  Mahadeorao  Sukaji  Shivankar  Vs.  

Ramaratan Bapu & Ors.3).  Broadly speaking, all primary or basic  

facts which are necessary either to prove the cause of action by the  

plaintiff  or  defence by the defendant  are “material  facts”.   Material  

3 (2004) 7 SCC 181

1

facts are facts which, if established, would give the petitioner the relief  

asked for.  But again, what could be said to be material facts would  

depend  upon  the  facts  of  each  case  and  no  rule  of  universal  

application can be laid down.   

13. The requirement in an election petition as to the statement of material  

facts and the consequences of lack of such disclosure with reference  

to Sections 81, 83 and 86 of the Act came up for consideration before  

a three-Judge Bench of this Court in Samant N. Balkrishna & Anr.  

Vs. George  Fernandez  &  Ors4.  Speaking  for  the  three-Judge  

Bench, M. Hidayatullah, C.J., inter-alia, laid down that: (i) Section 83  

of  the  Act  is  mandatory  and  requires  first  a  concise  statement  of  

material facts and then the fullest possible particulars; (ii) omission of  

even a single material fact leads to an incomplete cause of action and  

statement of claim becomes bad; (iii) the function of particulars is to  

present  in  full  a  picture  of  the  cause  of  action  and  to  make  the  

opposite party understand the case he will have to meet; (iv) material  

facts and particulars are distinct matters – material facts will mention  

statements of fact and particulars will set out the names of persons  

with date, time and place and (v) in stating the material facts it will not  

4  (1969) 3 SCC 238 1

do  merely  to  quote  the  words  of  the  Section  because  then   the  

efficacy of the material facts will be lost.

14. At this juncture, in order to appreciate the real object and purport of  

the phrase “material facts”, particularly with reference to election law,  

it  would  be  appropriate  to  notice  distinction  between  the  phrases  

“material  facts”  as  appearing  in  clause  (a)  and  “particulars”  as  

appearing in clause (b) of sub-section (1) of Section 83.  As stated  

above, “material facts” are primary or basic facts which have to be  

pleaded by the petitioner  to  prove his  cause of  action and by the  

defendant to prove his defence.  “Particulars”, on the other hand, are  

details in support of the material facts, pleaded by the parties.  They  

amplify, refine and embellish material facts by giving distinctive touch  

to the basic contours of a picture already drawn so as to make it full,  

more  clear  and  more  informative.   Unlike  “material  facts”  which  

provide the basic foundation on which the entire edifice of the election  

petition is built, “particulars” are to be stated to ensure that opposite  

party is not taken by surprise.

15. The distinction  between “material  facts”  and “particulars”  and their  

requirement in an election petition was succinctly brought out by this  

1

Court in Virender Nath Gautam Vs. Satpal Singh & Ors.5, wherein  

C.K. Thakker, J., stated thus: (SCC p.631, para 50)

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

16. Now, before examining the rival submissions in the light of the afore-

stated  legal  position,  it  would  be  expedient  to  deal  with  another  

submission of learned counsel for the appellant that the High Court  

should not have exercised its power either under Order VI Rule 16 or  

Order VII Rule 11 of the Code to reject the election petition at the  

threshold. The argument is two-fold viz. (i) that even if the election  

petition was liable to be dismissed ultimately,  it  should have been  

dismissed only after affording an opportunity to the election petitioner  

to adduce evidence in support of his allegation in the petition and (ii)  

since  Section  83  does  not  find  a  place  in  Section  86  of  the  Act,  

5 (2007) 3 SCC 617

1

rejection of petition at the threshold would amount to reading into sub-

section (1) of Section 86 an additional ground.

17. In our opinion, both the contentions are misconceived and untenable.  

Undoubtedly, by virtue of Section 87 of the Act, the provisions of the  

Code apply to the trial of an election petition and, therefore, in the  

absence of anything to the contrary in the Act,  the court  trying an  

election  petition  can act  in  exercise  of  its  power  under  the  Code,  

including Order VI Rule 16 and Order VII Rule 11 of the Code. The  

object of both the provisions is to ensure that meaningless litigation,  

which is otherwise bound to prove abortive, should not be permitted  

to  occupy the  judicial  time  of  the  courts.   If  that  is  so  in  matters  

pertaining to ordinary civil litigation, it must apply with greater vigour  

in election matters where the pendency of an election petition is likely  

to inhibit the elected representative of the people in the discharge of  

his public duties for which the Electorate have reposed confidence in  

him.   The submission, therefore, must fail.  Coming to the second  

limb of the argument viz., absence of Section 83 in Section 86 of the  

Act,  which specifically provides for dismissal of  an election petition  

which does not comply with certain provisions of the Act, in our view,  

the issue is no longer res-integra.  A similar plea was negatived by a  

1

three-Judge Bench of this Court in Hardwari Lal Vs. Kanwal Singh6,  

wherein speaking for the Bench, A.N. Ray, J. (as His Lordship then  

was) said: (SCC p.221, para 23)

“23. 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  emphasised 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 suits. A suit which  does not furnish cause of action can be dismissed.”

18. The issue was again dealt with by this Court in  Azhar Hussain Vs.  

Rajiv Gandhi7.  Referring to earlier pronouncements of this Court in  

Samant N. Balkrishna (supra) and Udhav Singh Vs. Madhav Rao  

Scindia8 wherein  it  was  observed  that  the  omission  of  a  single  

material fact would lead to incomplete cause of action and that an  

election petition without the material facts is not an election petition at  

all, the Bench held that all the facts which are essential to clothe the  

petition with complete cause of action must be pleaded and omission  

of even a single material fact would amount to disobedience of the  

6 (1972) 1 SCC 214 7 1986 (Supp) SCC 315 8 (1977) 1 SCC 511

1

mandate of Section 83(1)(a) of the Act and an election petition can be  

and must be dismissed if it suffers from any such vice.

19. We may now advert  to  the facts  at  hand to  examine whether  the  

election petition suffered from the vice of non-disclosure of material  

facts as stipulated in Section 83(1)(a) of the Act.  As already stated  

the case of the election petitioner is confined to the alleged violation  

of Section 100(1)(d)(iv).  For the sake of ready reference, the said  

provision is extracted below:

“100. Grounds for declaring election to be void.—(1)  Subject  to  the provisions of  sub-section  (2)  if  the  High  Court is of opinion—

*****  (d) that the result of the election, in so far as it concerns  

a returned candidate, has been materially affected —

***** (iv) by any non—compliance with the provisions of the  

Constitution or of this Act or of any rules or orders  made under this Act, the High Court shall declare  the election of the returned candidate to be void.”

20. It is plain that in order to get an election declared as void under the  

said provision, the election petitioner must aver that on account of  

non-compliance with the provisions of the Constitution or of this Act or  

of any rules or orders made under the Act, the result of the election,  

insofar  as  it  concerned  the  returned  candidate,  was  materially  

1

affected. As already stated, in the present case, the allegation of the  

election petitioner is that the Returning Officer failed to circulate the  

attested signatures of  his election agent  to various polling stations  

and, therefore,  failed to comply with para 12 of Chapter VII  of  the  

Handbook  for  Returning  Officers.  The  pleadings  in  the  election  

petition, in relation to grounds (i) and (ii), extracted in para 2 above,  

were as under:   

“11. That  due  to  aforesaid  inaction  of  the  Returning  Officer  the  polling  agent  of  the  petitioner  was  not  permitted to  function till  3.00 P.M.  by which time more  than 80% polling was over. This inaction on the part of  Returning  Officer  materially  affected  the  election  as  almost all other polling agents of the petitioner working in  other polling stations got confused and supporters of the  petitioner  either  returned  back  or  voted  for  congress  candidate.    

12. That the Returning Officer was duty bound to  send required Praroop of  the petitioner and his agent’s  signature one day before the day of election which he did  not do.  Due to his inaction of the Returning Officer the  election  of  13  Laxman  Chowk  Legislative  Assembly  Constituency was materially affected.”     

21. There is no quarrel with the proposition that the instructions contained  

in the Handbook for the Returning Officers are issued by the Election  

Commission in exercise of its statutory functions and are, therefore,  

binding on the Returning Officers.  They are obliged to follow them in  

letter  and spirit.   But  the question for  consideration is whether  the  

1

afore-extracted paragraphs of the election petition disclose material  

facts so as to constitute a complete cause of action.  In other words,  

the  question  is  whether  the  alleged  omission  on  the  part  of  the  

Returning Officer ipso facto “materially affected” the election result. It  

goes without saying that the averments in the said two paragraphs  

are to be read in conjunction with the preceding paragraphs in the  

election petition.  What is stated in the preceding paragraphs, as can  

be noticed from grounds (i) and (ii) reproduced above, is that by the  

time specimen signature of the polling agent were circulated 80% of  

the polling was over and because of the absence of the polling agent  

the voters got confused and voted in favour of the first respondent.  In  

our opinion, to say the least, the pleading is vague and does not spell  

out as to how the election results were materially affected because of  

these two factors. These facts fall short of being “material facts” as  

contemplated in Section 83(1)(a) of the Act to constitute a complete  

cause of action in relation to allegation under Section 100(1)(d)(iv) of  

the Act.  It is not the case of the election petitioner that in the absence  

of  his  election  agent  there  was  some  malpractice  at  the  polling  

stations during the polling.  It needs little reiteration that for purpose of  

Section 100(1)(d)(iv), it was necessary for the election petitioner to  

aver specifically in what manner the result of the election insofar as it  

2

concerned the first  respondent,  was materially  affected due to  the  

said omission on the part of the Returning Officer. Unfortunately, such  

averment  is  missing  in  the  election  petition.  In  our  judgment,  

therefore, the Election Tribunal/High Court was justified in coming to  

the conclusion that statement of material facts in the election petition  

was completely lacking and the petition was liable to be rejected at  

the threshold on that ground.  We have, therefore, no hesitation in  

upholding the view taken by the High Court.

    22. Consequently,  this  appeal,  being  devoid  of  any  merit,  fails  and  is  

dismissed  accordingly.  Since  the  first  respondent  remained  

unrepresented, there will be no order as to costs.

.…………………………………J.                     (D.K. JAIN)

                              ..….…………………………….J.                     (H.L. DATTU)

NEW DELHI; SEPTEMBER 18, 2009

2