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CASE NO.: Appeal (civil)  809 of 2005

PETITIONER: Virender Nath Gautam

RESPONDENT: Satpal Singh & Ors

DATE OF JUDGMENT: 08/12/2006

BENCH: C.K. Thakker & R.V. Raveendran

JUDGMENT: J U D G M E N T

C.K. Thakker, J.

       This appeal is filed by the appellant against the  judgment and order dated December 20, 2004 passed by  the High Court of Himachal Pradesh, Shimla in Election  Petition No. 2 of 2003.  By the said order, the High Court  upheld the preliminary objection raised by the first  respondent that the Election Petition did not disclose  material facts and was liable to be dismissed.         The case of the appellant is that the Election  Commission of India notified the programme for the  elections to the Legislative Assembly in the State of  Himachal Pradesh scheduled to be held in February,  2003.  As per the said notification, the last date of filing  of nomination papers was February 7, 2003, scrutiny -  February 8, 2003, date of withdrawal \026 February 10,  2003, date of polling \026 February 26, 2003 and of counting  of votes \026 March 1, 2003.  According to the appellant, he  submitted his nomination paper as a candidate of Indian  National Congress Party on February 26, 2003 from 32  Una Assembly Constituency.  Respondent No. 1 was set  up by Bhartiya Janata Party and contested the election  from the said constituency.  At the counting, according to  the appellant, he secured 27,600 votes while the first  respondent got 27,651 votes.  Thus, by a small margin of  51 votes, the first respondent was declared successful  candidate.         According to the appellant, there were several  irregularities and illegalities as also discrepancies in the  Voters List.  Electronic Voting Machines which were  employed were defective; many void votes had been  polled; there were cases of double voting and all those  illegalities vitiated the election and materially affected the  result thereof.  The appellant, therefore, filed an Election  Petition on April 10, 2003.  In the said petition, he alleged  that one Tek Chand Thakur was the Returning Officer for  the constituency in question.  At the time of counting, the  appellant requested the Returning Officer that he had  come to know that many void votes had been cast and  they should be deleted from counting, but the Returning  Officer expressed his inability and helplessness to do so  stating that there was no such mechanism in the  Electronic Voting Machines.         In paragraph 8 of the Election Petition, the appellant

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stated that as many as 188 votes had been wrongly  counted though they were invalid/void votes.  In the  Election Petition itself, the appellant had given details of  all such votes.  He also stated that since the margin of  votes between the defeated candidate and the returned  candidate was only 51 votes and the wrong counting of  votes amounted to 188 invalid/void votes, it had  materially affected the result of the election.  In para 8(i), he stated that as many as 37 votes of  dead persons have been cast and they should not have  been counted.  The appellant had given names of those  dead persons along with numbers in the voters’ list.  Death certificates of 36 persons were filed as Annexure  EP-3 to EP-38. He stated that the Gram Panchayat  concerned had not issued death certificate in respect of  one Mukesh Kumar.  He, therefore, annexed Death  Report along with a forwarding letter dated April 7, 2003  in respect of deceased Mukesh Kumar issued by the  Senior Medical Officer, Zonal Hospital, Una District, Una.   The appellant also stated that out of 37 votes, 30 votes  had been polled in booth Nos. 48 and 49, in the native  village of the first respondent-returned candidate.         In paragraph 8(ii), the appellant alleged that as  many as 60 double votes had been cast which was in  contravention of the provisions of Section 62(4) of the  Representation of the People Act, 1951 (hereinafter  referred to as "the Act").  Thus, 120 votes had been  counted though voters were only 60.  It was in violation  of the statutory provision and those votes were,  therefore, void.  The details of those votes had also been  mentioned in the Election Petition itself.         In paragraph 8(iii), the appellant averred that 19  void votes had been polled.  Even though all those  persons cast their votes in booth Nos. 76 and 63 of  Kutlehar \026 33 Constituency, in Una 32 Constituency, the  same voters had again cast their votes. The appellant has  given details of those voters in the Election Petition.   According to the appellant, the returned candidate was  the beneficiary of those void votes and since the margin  was small, the result had been materially affected.         In paragraph 8(iv), the appellant had alleged that  material irregularities had been committed by the  Returning Officer while counting Postal Ballot Papers.  Six  persons named in the petition had sent double Postal  Ballot Papers. So instead of six votes, twelve votes had  been cast.   According to the appellant, irregularities and  illegalities mentioned in paragraph 8 had materially  affected the result of the election.  Had there been proper  voting and counting, the appellant would have secured  more number of votes than the first respondent. On the  above grounds, a prayer was made by the appellant to  call for the record of the Electronic Voting Machines, to  inspect all polled votes of 32 Una Assembly Constituency  and of booth Nos. 76 and 36 of Kutlehar \026 33 Assembly  Constituency, to order re-counting, to set aside and  declare election of the first respondent void and to  declare appellant as duly elected candidate from 32 Una  Constituency.  Other reliefs were also prayed for.         A written statement was filed by the respondent  controverting facts stated, allegations leveled and  averments made in the Election Petition.  He denied all  the allegations of the appellant. He also raised a  preliminary objection as to maintainability of petition  contending inter alia that as no objection had been taken

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by the appellant at an appropriate stage, it was not open  to him to raise such contentions after the election was  over and result was declared. It was further contended  that the petition had not been properly verified as  required by law and the appellant had not disclosed the  names of persons from whom he had received  information as to averments made in sub-paragraphs (i)  to (iv) of para 8 of the petition.  The first respondent also  asserted that the petition lacked material facts and full  particulars as required by law.  The allegations in the  petition were vague and did not disclose sufficient  grounds for re-counting for which prayer was made.   According to the first respondent, since the petition did  not disclose cause of action, it was liable to be dismissed  on that ground alone.  Apart from that, even on merits,  nothing could be pointed out which would enable him to  claim any of the reliefs sought in the Election Petition and  the petition was liable to be dismissed.         In replication, the appellant submitted that the  objections raised by the first respondent-returned  candidate were ill-founded and reiterated what he had  stated in the main petition.  According to him, allegations  were not vague, but self-explanatory and based on  material facts and full particulars.          On the basis of the pleadings, the High Court framed  eight issues.  The High Court, however, treated issues  Nos. 5, 6 and 8 as preliminary issues.  Since, we are  concerned in the instant case only with regard to  preliminary issues, they may be re-produced. 5. Whether the election petition does not disclose  any cause of action?

6.      Whether the petition lacks in material facts and  particulars, as contemplated under Section 83 of  the Representation of People Act?

8.      Whether the petitioner is estopped from claiming  recounting of votes?

       The High Court then heard the learned counsel for  the parties on the above three issues.  The High Court  noted that it was contended by the learned counsel for  the returned candidate that the Election Petition did not  disclose cause of action by placing on record material  facts on which the defeated candidate relied in support of  the challenge made by him and the petition was liable to  be dismissed.  The High Court considered the relevant  provisions of the Act as also the leading decisions of this  Court and passed the following order;  "For the reasons recorded above, the election  petition cannot be said to be in accordance with  Section 83(1)(a) of the Act being bereft of  primary facts to complete the cause of action.  The defect cannot be cured even by amendment  of the petition.

 To conclude, the petitioner has not disclosed  all material facts and has withheld the same.  In  the absence of such facts, a roving inquiry cannot  be permitted.  There is no dispute that if para 8  sub-paras (i) to (iv) are deleted, nothing survives  in the election petition for putting the petition for  trial. For the aforesaid reasons, para 8 sub-paras (i),

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(ii), (iii) and (iv) are struck down being vague,  indefinite and lacking in material particulars.  After striking down of the said paras, nothing  survives in the election petition.  The petition is  rejected with costs quantified at Rs. 5000/-.    (emphasis supplied)

       Regarding 37 votes of dead persons, the High Court  observed that according to the appellant, 30 such votes  out of 37 votes were cast in booth Nos. 48 and 49 which  was in the native place of the first respondent-returned  candidate.  The Court stated that so far as that allegation  was concerned, there was not a word as to how many of  those votes were cast in favour of the returned candidate  and who cast those votes.  The Court proceeded to  observe that the defeated candidate did not say that he  raised any objection when electoral rolls were prepared or  revised under Section 21 of the Representation of the  People Act, 1950.

       The Court then stated;   "The defeated candidate does not say that he  was not aware of the entries of the dead persons in  the Electoral Roll which, in my view, is a material  fact and ought to have been pleaded".   

The High Court also observed that there was not a  word, a whisper that the polling agents challenged the  identity of the persons who allegedly voted for dead  electors.  No reason was put forward as to why it was not  challenged. In the opinion of the High Court, it was a  material fact which ought to have been pleaded to enable  elected candidate to meet the challenge.  According to  the High Court, when the appellant had given particulars  of dead persons for whom the voting right was exercised  by impersonation, he must have known at the time of  polling that those electors were dead.  If he was not  aware, he ought to have stated as to when and how he  came to know about 37 voters whose names appeared in  the electoral rolls and how by personation votes were  polled. There was no allegation that the votes cast due to  impersonation of the dead persons were managed by the  returned candidate or his supporters or election agent.   The said allegation thus lacked material facts.  Omission  to mention those material facts rendered the cause of  action incomplete, observed the High Court.        According  to the High Court, merely because the returned candidate  had won by a narrow margin, it could not be a reason for  inspection of ballot papers or re-counting of votes.         Regarding 60 persons alleged to have exercised  right to vote twice in the same constituency in booth Nos.  48 and 49, thereby resulting in 120 void votes in Una 32  Constituency, the High Court observed that the Election  Petition was silent as to when and how the appellant  came to know about the persons having cast their votes  in different booths in the same constituency.  He did not  state who impersonated for those persons in the other  booth.  The appellant also did not say precisely as to  when he came to know that 60 persons had voted twice.  As to 19 persons alleged to have voted in two  different constituencies, the High Court observed that the  allegations were not supported by material facts. Even  though the pleading indicated that the defeated candidate

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was aware of the persons who voted twice at the same  constituency and in different constituencies, neither he  nor any person on his behalf raised any objection at the  relevant time.  He also did not disclose the source of  information regarding casting of void votes which was a  material fact.  Only a bald assertion had been made  which was not sufficient.         Regarding double voting in para 8(iv) while counting  postal ballot papers, it was the case of the appellant that  instead of six votes, twelve votes were cast because of  double Postal ballots. The High Court observed that the  appellant had given details of those persons including the  vote number, yet it held the allegation on the face of it  was "bereft of material facts" and presumptuous. The  High Court observed that the allegation would not lead to  the conclusion that in fact those six persons cast their  votes twice and it materially affected the result of  returned candidate.  It was also not stated in the petition  that those six persons had been issued double postal  ballot papers and that all the twelve ballot papers were  counted in favour of the returned candidate. According to  the High Court, it was a material fact and since it was not  stated, the cause of action was not complete.   The High Court, therefore, concluded;         "The allegations made by the defeated  candidate are vague, indefinite, bereft of material  facts.  It is not precisely stated as to how many void  votes were cast in favour of the returned candidate  and if such void votes were not counted in his  favour, the defeated candidates would have been  elected."

       On the basis of the said reasons, the High Court held  that the Election Petition could not be said to be in  accordance with Section 83(1)(a) of the Act and the  defect could not be cured by amendment of the petition.   Since the appellant had not disclosed all material facts,  no roving inquiry could be permitted.  The High Court,  therefore, ordered striking down sub-paras (i), (ii), (iii)  and (iv) of para 8 which resulted in rejection of the  Election Petition without entering into merits of the case.         On February 14, 2005, notice was issued by this  Court.  Interim order was also passed to the effect that  Electronic Voting Machines used in two polling booths of  32- Una Assembly Constituency and Booth Nos. 63 and  76 of 33 \026 Kutlehar Assembly Constituency be preserved  until further orders.  The appeal was thereafter ordered  to be placed for final hearing.          We have heard the learned counsel for the parties.         The learned counsel for the appellant contended that  the High Court has committed an error of law in  dismissing the Election Petition at the threshold without  entering into merits of the matter on the ground that it  did not set out material facts in the Election Petition and  failed to disclose cause of action and as such it was liable  to be dismissed.  According to the learned counsel, not  only material facts had been set out in the Election  Petition, but full particulars had also been mentioned.   The High Court was, therefore, not right in dismissing the  petition without entering into the correctness or otherwise  of the allegations and averments in the petition.  The  counsel, therefore, submitted that the appeal deserves to  be allowed by setting aside the order of the High Court  and by remitting the Election Petition to be decided on  merits.

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       The learned counsel for the respondents, on the  other hand, supported the order passed by the High  Court.  He submitted that the law requires that material  facts and full particulars ought to have been stated in the  petition.  Failure to do so would result in dismissal of the  petition and since material facts and full particulars had  not been mentioned in the Election Petition, the High  Court was right in upholding the preliminary objection of  maintainability of petition raised by the returned  candidate and in dismissing the petition.  He also  submitted that the High Court was right in observing that  at the relevant stage, no objection was taken either by  the defeated candidate or by his election agent and only  after the appellant had lost the election that he came  forward by raising all technical objections.  He, therefore,  prayed for dismissal of the appeal by affirming the order  of the High Court. Before we deal with the contentions of the parties, it  would be appropriate if we refer to the relevant provisions  of the Act. The Preamble of the Act declares that the Act  has been enacted "to provide for the conduct of elections  of the Houses of Parliament and to the House or Houses  of the Legislature of each State, the qualifications and  disqualifications for membership of those Houses, the  corrupt practices and other offences at or in connection  with such elections and the decision of doubts and  disputes arising out of or in connection with such  elections". Part I is Preliminary.  Part II deals with qualifications  and disqualifications for membership of Parliament and of  State Legislatures.  While Part III provides for issuance of  notifications for elections, Part IV relates to  administrative machinery for the conduct of elections.  Sections 59 and 60 lay down manner and procedure of  voting. Section 61 prescribes special procedure for  preventing personation of electors.  Section 62 relates to  right to vote.  It is a material provision and may be  quoted in extenso;  62. Right to vote.\027(1) No person who is not, and  except as expressly provided by this Act, every  person who is, for the time being entered in  the electoral roll of any constituency shall be  entitled to vote in that constituency.

(2)     No person shall vote at an election in any  constituency if he is subject to any of the  disqualifications referred to in section 16 of the  Representation of the People Act, 1950 (43 of  1950). (3)     No person shall vote at a general election in  more than one constituency of the same class,  and if a person votes in more than one such  constituency, his votes in all such  constituencies shall be void.

(4)     No person shall at any election vote in the  same constituency more than once,  notwithstanding that his name may have been  registered in the electoral roll for the  constituency more than once, and if he does so  vote, all his votes in that constituency shall be  void.

(5)     No person shall vote at any election if he is  confined in a prison, whether under a sentence

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of imprisonment or transportation or otherwise,  or is in the lawful custody of the police;

       Provided that nothing in this sub-section shall  apply to a person subjected to preventive  detention under any law for the time being in  force.

(6)     Nothing contained in sub-sections (3) and (4)  shall apply to a person who has been  authorized to vote as proxy for an elector  under this Act in so far as he votes as a proxy  for such elector.  

Conduct of elections has been dealt with in Part V.  Part VI relates to ’Disputes regarding elections’. Section  80 requires any election to be questioned only by way of  Election Petition. Under Section 80A, it is the High Court  which can try election petitions.  Section 81 provides for  presentation of election petition and prescribes the period  of limitation.  Section 82 declares as to who shall be  joined as respondents to such Election Petition.  Section  83 deals with contents of petition and reads thus- 83.  Contents of petition.\027(1) An Election  petition\027 (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.

       Section 100 enumerates grounds for declaring  election to be void which inter alia includes improper  reception, refusal or ejection of any vote or the reception  of any vote which is void or there is non-compliance with  the provisions of the Constitution or of the Act or Rules or  orders made under the Act. Section 101 empowers the  High Court to declare a candidate other than the returned  candidate to have been elected.  Section 123 declares  certain practices as "deemed to be corrupt practices". From the relevant provisions of the Act reproduced  hereinabove, it is clear that an election petition must contain  a concise statement of ’material facts’ on which the petitioner  relies.  It should also contain ’full particulars’ of any corrupt

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practice that the petitioner alleges including a full statement  of names of the parties alleged to have committed such  corrupt practice and the date and place of commission of such  practice.  Such election petition shall be signed by the  petitioner and verified in the manner laid down in the Code of  Civil Procedure, 1908 (hereinafter referred to as "the Code")  for the verification of pleadings. It should be accompanied by  an affidavit in the prescribed form in support of allegation of  such practice and particulars thereof. All material facts, therefore, in accordance with the  provisions of the Act, have to be set out in the election  petition.  If the material facts are not stated in a petition, it is  liable to be dismissed on that ground as the case would be  covered by clause (a) of sub-section (1) of Section 83 of the  Act read with clause (a) of Rule 11 of Order VII of the Code.   The expression ’material facts’ has neither been defined  in the Act nor in the Code.  According to the dictionary  meaning, ’material’ means ’fundamental’, ’vital’, ’basic’,  ’cardinal’, ’central’, ’crucial’, ’decisive’, ’essential’, ’pivotal’,  indispensable’, ’elementary’ or ’primary’. [Burton’s Legal  Thesaurus, (Third edn.); p.349]. The phrase ’material facts’,  therefore, may be said to be those facts upon which a party  relies for his claim or defence.  In other words, ’material  facts’ are facts upon which the plaintiff’s cause of action or  the defendant’s defence depends.  What particulars 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.  It is, however, absolutely essential that all basic and  primary facts which must be proved at the trial by the party  to establish the existence of a cause of action or defence are  material facts and must be stated in the pleading by the  party. In the leading case of Phillips v. Phillips, (1878) 4 QBD  127 : 48 LJ QB 135, Cotton, L.J. stated: "What particulars are to be stated must  depend on the facts of each case.  But in my  opinion it is absolutely essential that the pleading,  not to be embarrassing to the defendants, should  state those facts which will put the defendants on  their guard and tell them what they have to meet  when the case comes on for trial."

In Bruce v. Odhams Press Ltd., (1936) 1 KB 697 :  (1936) 1 All ER 287, Scott, L.J. referring to Phillips v. Phillips  observed: "The cardinal provision in Rule 4 is that the  statement of claim must state the material facts.   The word ’material’ means necessary for the  purpose of formulating a complete cause of  action; and if any one ’material’ statement is  omitted, the statement of claim is bad; it is  ’demurrable’ in the old phraseology, and in the  new is liable to be ’struck out’ under R.S.C.  Order  25 Rule 4 (see Phillips v. Phillips); or ’a further  and better statement of claim’ may be ordered  under Rule 7."

A distinction between ’material facts’ and ’particulars’,  however, must not be overlooked. ’Material facts’ are primary  or basic facts which must be pleaded by the plaintiff or by the  defendant in support of the case set up by him either to  prove his cause of action or defence.  ’Particulars’, on the  other hand, are details in support of material facts pleaded by  the party.  They amplify, refine and embellish material facts  by giving distinctive touch to the basic contours of a picture

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already drawn so as to make it full, more clear and more  informative.  ’Particulars’ thus ensure conduct of fair trial and  would not take the opposite party by surprise. All ’material facts’ must be pleaded by the party in  support of the case set up by him.  Since the object and  purpose is to enable the opposite party to know the case he  has to meet with, in the absence of pleading, a party cannot  be allowed to lead evidence.  Failure to state even a single  material fact, hence, will entail dismissal of the suit or  petition.  Particulars, on the other hand, are the details of the  case which is in the nature of evidence a party would be  leading at the time of trial. In Halsbury’s Laws of England, (4th edn.); Vol.36; para  38, it has been stated; "The function of particulars is to carry into  operation the overriding principle that the  litigation between the parties, and particularly the  trial, should be conducted fairly, openly and  without surprises, and incidentally to reduce  costs. This function has been variously stated,  namely either to limit the generality of the  allegations in the pleadings, or to define the  issues which have to be tried and for which  discovery is required. Each party is entitled to  know the case that is intended to be made  against him at the trial, and to have such  particulars of his opponent’s case as will prevent  him from being taken by surprise. Particulars  enable the other party to decide what evidence he  ought to be prepared with and to prepare for the  trial. A party is bound by the facts included in the  particulars, and he may not rely on any other  facts at the trial without obtaining the leave of the  court."

       In para 8, the election-petitioner has asserted that  as many as 188 votes have been wrongly counted in spite  of the fact that all those votes were invalid/void votes.   He had also stated that since the margin of votes  between the defeated candidate and the successful  candidate was only 51, wrong counting of 188  invalid/void votes ’materially affected’ the result of the  election.  The High Court had not dealt with at all  paragraph 8 in the impugned judgment.  Only on this  short ground, in our opinion, the impugned order  deserves to be set aside.         But even otherwise, the reasoning adopted and  conclusions arrived at by the High Court on sub-paras (i)  to (iv) of para 8 are equally ill-conceived.  In para 8(i),  the election-petitioner has stated that 37 votes of dead  persons had been cast and they were thus void votes and  could not have been counted.  Not only the election- petitioner had given the names of all 37 persons, but had  also annexed death certificates of 36 persons along with  the Election Petition in the form of Annexures EP 3 to EP  38.  Regarding the remaining one, he had stated that the  Gram Panchayat had not issued death certificate, but  Death Report issued by the Senior Medical Officer, Zonal  Hospital, Una had been annexed at Annexure EP 39.         The High Court, dealing with the allegation in para  8(i) has observed that there was nothing to show and not  a word as to how many of those 37 votes were cast in  favour of the returned candidate and who cast those  votes.  It was also observed that the defeated candidate

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never raised any objection at the time of polling and at  the stage of filing Election Petition, it was not open to  raise an objection.  It was further observed that it was  not the case of the election-petitioner that he was not  aware of death of those persons at the time of polling and  it was a case of personation of electors within the  meaning of Section 61 of the Act.  There was also not a  whisper, observed the High Court that the polling agent  had challenged the identity of the persons who allegedly  voted for the dead electors. The High Court also stated  that it was not stated in the Election Petition that the  returned candidate or his supporters or election agent  managed to have votes cast by impersonation.  All these  facts, according to the High Court, were material facts  and since they were not stated in the Election Petition,  the petition was defective.         We are unable to agree with the High Court. In our  opinion, the considerations which weighed with the High  Court were in the nature of ’evidence’ which is a matter  to be considered and proved at the time of trial.  The  High Court was also not right in virtually invoking the  doctrine of estoppel and in dismissing the petition on that  ground.         Regarding allegations in para 8(ii) of the Election  Petition, the election-petitioner has alleged that there was  double voting by 60 voters which was in violation of  section 62(4) of the Act.  The details of those voters have  been mentioned in the petition.  It was also stated that  out of 120 votes (instead of 60) 104 votes were cast at  booth Nos. 48 and 49 which were in the native village of  the first respondent.         The High Court almost for the same reasons on  which it ordered deletion of para 8(i), has also ordered to  delete para 8(ii).  It observed that the petition was  significantly silent as to when and how the election- petitioner came to know about the persons having cast  their votes twice in two different booths in the same  constituency.  He also did not say who impersonated for  those persons in the other booth.  Nothing was stated as  to when the petitioner precisely came to know about the  fact that 60 persons had cast their votes twice in different  booths and no reasons was put forward as to why no  objection was raised at the relevant time.  All these facts,  according to the High Court, were material facts and  since they were not stated, the petition was defective.         With respect, the High Court is not right.  When the  law prevents a person from exercising right of vote more  than once and it is alleged that there was double voting in  respect of certain persons, the ’allegation’ can be said to  be complete.  Whether or not the election-petitioner is  able to prove the said allegation is a matter of evidence  which can be considered only at the stage of trial.  By no  stretch of imagination, however, it can be said that the  material fact, that is, allegation regarding double voting  had not been stated in the Election Petition which  required Election Petition to be dismissed on that ground.         As to para 8(iii), the case of the election-petitioner  was that 19 void votes had been cast.  The said votes  being void since 19 persons had exercised their right to  vote in two constituencies, i.e. in Una 32 Constituency as  also in booth No 76 and 63 of Kutlehar 33 Constituency.   The details of those voters have been mentioned in the  Election Petition.         The High Court held that material facts had not been  stated and observed that it was not shown as to how the

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petitioner came to know about the persons listed having  voted in two different constituencies and who  impersonated them.   As already observed earlier, the approach of the  High Court was not in consonance with law and the High  Court entered into prohibited area of considering the  correctness of the allegation which is to be considered  and adjudicated at the time of trial.           Finally, in para 8(iv), the election-petitioner has  alleged that there was material irregularity in counting  postal ballot papers by the Returning Officer.  According  to the election-petitioner, six persons whose names have  been mentioned in the Election Petition had voted twice  thereby 12 votes had been polled.  All those 12 votes,  therefore, should be treated as void.         The High Court observed that the allegation, on the  face of it, was ’bereft of material particulars’ and the  allegation presumptuous.  It observed that nothing was  stated as to how and when the defeated candidate came  to know about the six persons having been issued double  ballot papers.  The said fact was material to enable the  returned candidate to meet with the allegation of the  defeated candidate.  It was also not the case of the  election-petitioner that all those 12 ballot papers were  counted in favour of the returned candidate and that if  those votes have been counted in favour of the petitioner,  the result could have been materially affected.         On the basis of our conclusions and reasoning in  respect of para 8(i) to (iii), the finding of the High Court  on para 8(iv) also cannot be said to be in consonance  with law. Whether or not six persons had been issued  voting papers twice and whether or not those voters had  polled in favour of returned candidate cannot be said to  be a material fact to be stated in the Election Petition.   What are required to be stated in the petition are  material facts to maintain the petition.          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.         In our considered opinion, material facts which are  required to be pleaded in the Election Petition as required  by Section 83 (1) of the Act read with Order VII, Rule  11(a) of the Code have been pleaded by the election- petitioner, cause of action has been disclosed in the  Election Petition and, hence, the petition could not have  been dismissed by the High Court.  The impugned order  of the High Court suffers from infirmity and cannot be  sustained.         The High Court, in our considered opinion, stepped  into prohibited area of considering correctness of  allegations and evidence in support of averments by  entering into the merits of the case which would be  permissible only at the stage of trial of the Election  Petition and not at the stage of consideration whether the  Election Petition was maintainable and dismissed the

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petition.  The said action, therefore, cannot be upheld  and the order deserves to be set aside. On an additional ground also, the order of the High  Court is liable to be set aside.  All allegations in Para 8 of  the Election Petition, as also sub-paras (i) to (iv) of para  8 relate to improper and illegal reception and acceptance  of votes and the election-petitioner has challenged the  election of the returned candidate on that ground and not  on the ground of ’corrupt practice’.  He was, therefore,  required to state material facts in the Election Petition  under Section 83(1)(a) of the Act.  It was, however, not  necessary to ’set forth full particulars’, which is the  requirement of Section 83(1)(b) of ’any corrupt practice’. The High Court dismissed the petition inter alia on  the ground that paras 8(i) to (iv) lacked in material  particulars.  Apart from the fact that the law does not  require material particulars even in respect of  allegations of corrupt practice but only full particulars  and if they are lacking, the petition can be permitted to  be amended or amplified under Section 86 of the act, in  the instant case, Clause (b) of Section 83(1) had no  application and the petition has been dismissed by the  High Court by applying wrong test.  On that ground also,  the order passed by the High Court is unsustainable [Vide  Harkirat Singh v. Amrinder Singh, (2005) 13 SCC 511].  For the foregoing reasons, the appeal deserves to  be allowed and is, accordingly, allowed with costs.  The  order passed by the High Court is set aside.  The Election  Petition No. 2 of 2003 is restored to file, and is remitted  to the High Court to decide the same on merits.  Since  the election took place in February, 2003 and the petition  was dismissed on preliminary ground as not maintainable  and is required to be decided on merits, the High Court is  requested to give priority and dispose it of expeditiously.