REPORTABLE

IN THE SUPREME COURT OF INDIA

CIVIL APPELLATE JURISDICTION

CIVIL APPEAL NO.                 OF 2009 (Arising out of SLP (Civil) No.18893 of 2008)

Anil Vasudev Salgaonkar    .. Appellant

Versus

Naresh Kushali Shigaonkar  .. Respondent

J U D G M E N T

Dalveer Bhandari, J.

1. Leave granted.

2. This appeal is directed against the judgment and order  

of  the  High  Court  of  Bombay  Bench  at  Goa  passed  in  

Election Application No.5 of 2007 in Election Petition No.1 of  

2007 on 4th July, 2008.  

3. The respondent herein has filed an election petition in  

the High Court of Bombay at Goa challenging the election of

the  appellant  (respondent  no.1 in  the  election petition)  to  

Goa  Legislative  Assembly  from  35  Sanvordem  Assembly  

Constituency.   In the assembly elections held on 2nd June,  

2007, the appellant secured overwhelming mandate from the  

electorates  securing 10705 votes  out  of  total  19657 votes  

polled  whereas,  his  nearest  rival  (respondent  no.2  in  the  

election  petition)  set  up  by  the  Bharatiya  Janata  Party  

secured  only  3782  votes  and  the  respondent  (election  

petitioner) polled only 275 votes and forfeited his deposits.  

In the election petition before the High Court, a prayer has  

been made to declare the election of the appellant herein as  

null and void  on ground of corrupt practices in which the  

appellant indulged during the elections.  The allegations in  

the petition are as under:

i) The  returned  candidate  with  an  

intent  to  secure  the  votes  of  the  

voters of  his constituency got  13  

bore wells constructed at his own  

cost  in  the  seven  villages  of  the  

said constituency;

ii) The  returned  candidate  had  also  

provided  ambulances  to  the  

villages  namely  Collem,  

Sanvordem, Mollem, Dharbandora  

and Khirpal  Dabhal  as  a  part  of  

his action in luring voters to vote  

in his favour.  

4. It has also been alleged that the appellant indulged in  

the abovementioned corrupt practices and incurred election  

expenditure  in  contravention  of  section  77  of  the  

Representation of the People Act, 1951 (hereinafter referred  

to as “the Act”) thereby crossing the limit of Rs.5,00,000/-  

prescribed under the Act and the Rules framed thereunder.

5. The written statement to the election petition was filed  

by  the  appellant  in  the  High  Court.   The  allegations  

mentioned in the election petition were specifically refuted  

and denied in the written statement.  Apart from number of  

preliminary objections, it was stated by the appellant that  

the election petition does not comply with the provisions of

Chapter  II  of  the  Act  and  is,  therefore,  required  to  be  

dismissed at the threshold.

6. The appellant also stated in the written statement that  

the election petition does not contain a concise statement of  

the  material  facts  on  which  the  respondent  relies  and,  

therefore,  the  petition  does  not  comply  with  clause  (a)  of  

sub-section  (1)  of  section  83  of  the  Act.   It  was  also  

incorporated  in  the  written  statement  that  the  election  

petition does not set forth the material facts of the alleged  

corrupt practice.  The respondent herein has also failed to  

disclose the names of the parties alleged to have committed  

the corrupt practice.  In the election petition, the date and  

place of the commission of such alleged corrupt practice has  

not  been  mentioned  and,  therefore,  the  election  petition  

deserved to be dismissed as not maintainable.

7. In  the  written  statement  it  was  also  stated  that  the  

appellant  secured  10705  votes  whereas  the  respondent  

(election petitioner) got only 275 votes.  The margin is too  

huge  to  state  that  the  candidate  has  been  returned  on  

account of some alleged corrupt practice.  The respondent in

the election petition is required to show that the candidate  

has been elected and that the result of the election has been  

materially affected by any alleged corrupt practice committed  

as such.   

8. The allegations of alleged corrupt practices pleaded by  

respondent (election petitioner) are limited to digging of 13  

bore  wells  in  villages  falling  under  the  constituency  in  

question  after  issuance  of  the  election  notification.   The  

basis for this allegation is that the machinery allegedly used  

to dig bore holes in the ground as mentioned in paragraph  

16 of the election petition was the same machinery owned by  

a third party which was hired in the past to work for the  

Salgaoncar  Mining  Industries  at  Vagus  valley.   The  

respondent in paragraph 16 of the election petition has also  

averred that the owner of the Salgaoncar Mining Industries  

is the appellant herein and on this sole basis the conclusion  

is sought to be drawn and averment made to the effect that  

it is obvious that the cost of the said wells and the other  

wells  were  borne  by  the  returned  candidate  through  his  

business concern, namely, Salgaoncar Mining Industries.

9. The pleadings of the said allegations of corrupt practice  

are  limited  to  digging  of  bore  wells  only  and  there  is  no  

pleading on the material  facts whether any water  drawing  

equipment was installed in the said bore holes so dug and  

that such bore holes became water bore wells and that the  

water could be drawn from them.  Neither any facts have  

been pleaded nor particulars given to the effect of how and  

in what manner the voters were influenced in favour of the  

appellant so as to cast votes in his favour.  No particulars of  

such voters have been given in the election petition.  As such  

there is total absence of material pleadings so as to prove  

that due to the alleged corrupt practice the election has been  

vitiated in a manner that but for such bore holes not being  

dug  the  appellant  would  not  have  been  returned  as  a  

winning  candidate  and  either  respondent  herein  or  

respondent  no.2  of  the  election  petition  could  have  been  

returned as a winning candidate.

10. There are no averments to the effect whether such bore  

holes were dug with the consent and/or active knowledge of  

the appellant.  The estimates of cost involved supplied in the  

election petition are also limited to the cost of drilling the

bore holes and not of installing the water drawing plant and  

machinery in them to draw water from the bore holes.  As  

such,  the  said  pleading  is  totally  general  and  vague  in  

nature and is entirely incapable of passing the muster of the  

test as laid in the  Azhar Hussain v. Rajiv Gandhi  1986  

(Supp) SCC 315 or such facts as are pleaded in the petition  

are capable of being later on amplified in view of the test laid  

down  in  H.D.  Revanna  v.  G.  Puttaswamy  Gowda  &  

Others (1999) 2 SCC 217 so as to arrive at a conclusion that  

a triable case is made out.

11. The second allegation of the alleged corrupt practice is  

to the effect that the appellant herein has, in the name of his  

mining company viz. M/s Salgaoncar Mining Industries Pvt.  

Ltd.  Vagus,  Palem,  Bicholim,  Goa,  bought  5  Maruti  

Ambulances  from  M/s  Sai  Service  Station  Ltd.,  Verna,  

Salcete, Goa by incurring a cost of Rs.2,50,000/- for each of  

the  ambulances  and  the  cost  of  the  5  ambulances  

approximately would be a sum of Rs.12,50,000/- and once  

the said elections were declared and he filed his nomination  

for the said election, caused the said company to put the

said ambulances at the disposal of the villagers of the said  

villages.

12. There are absolutely no averments with regard to which  

villagers  or  electors  had  used  such  ambulances  and  for  

whose  benefit  such  ambulances  were  deployed  so  as  to  

constitute  ‘bribe’  to  the  voters and that to an extent  that  

would  have  influenced the  outcome of  the  election.   It  is  

stated that any company operating mines on large scale with  

heavy  machinery  is  under  a  statutory  duty  to  maintain  

safety at the mines and is, as such, statutorily required to  

provide  required  facilities  including  deployment  of  

ambulances  in  adequate  numbers  at  various  mines  to  

ensure safety of the persons working at these mines.  The  

various mines of  Salgaoncar Mining Industries are spread  

over large areas falling in the constituency.

13. The petition is absolutely devoid of any averment with  

regard to such ambulances being specifically  deployed for  

the benefit of any elector in the constituency much less a  

number  of  electors  who  would  have  benefited  from  such

service even if not admitted but proved to be true that could  

have influenced the election so as to change its outcome.

14. There  are  absolutely  no  averments  to  the  effect  that  

these ambulances were deployed at which specific place, at  

which specific time and for the benefit of whom and whether  

at the instance or with knowledge of the appellant.  As such,  

the said pleading is incapable of passing the test as laid in  

the  Azhar  Hussain’s  case  (supra) or  such  facts  as  are  

pleaded  in  the  petition  are  capable  of  being  later  on  

amplified in view of the test laid down in  H.D. Revanna’s  

case (supra)  so as to arrive at a conclusion that a triable  

case is made out.

15. The third allegation pertains to the election expenses  

incurred by the appellant on the basis that amount spent on  

digging of bores holes as well as the cost of 5 ambulances  

deployed for discharge of statutory requirements for carrying  

out mining operations by a company ought to be calculated  

towards the election expenses incurred by the appellant and,  

as such, devoid of any merit in view of the insufficiency of  

pleadings in terms of ‘material facts’ with respect to the two

main allegations of corrupt practices relating to digging of  

borewells and 5 ambulances.

16. The  High  Court  has  totally  misdirected  itself  by  

misconstruing the  ratio  laid  down in a catena of  decision  

pronounced by this  Court  including the law laid down in  

Azhar Hussain’s case (supra) and  H.D. Revanna’s case  

(supra) which  if  properly  applied  to  the  facts  and  

circumstances of the present case would lead to rejection of  

the election petition in limine.

17. The  other  important  questions  of  law  of  general  

importance  involved  in  the  present  petition  require  

adjudication by this Court are whether amenities or facilities  

provided in general and not in particular to a candidate or  

his agent or by any other person with the consent of  the  

candidate, is a corrupt practice or a bribery or a gratification  

within  the  meaning  of  section 100(1)(b)  read with  section  

123(1) of  the Act.   Whether the absence of the prescribed  

affidavit  in  Form  25  as  required  under  Rule  94A  of  the  

Conduct of Election Rules, 1961 and in terms of proviso to

section 83 of  the Act  is  fatal  to  the maintainability  of  an  

election petition on the ground of corrupt practices?

18. In the election petition the respondent has mentioned  

that there was scarcity of water supply in certain villages.  

However, the respondent has failed to mention the numbers  

of  houses which face such alleged water  scarcity.   In the  

written  statement,  the  appellant  also  alleged  that  the  

respondent in the election petition has also failed to mention  

about water availability of these villages; the respondent has  

further failed to mention as to since when has there been  

water scarcity?

19. The appellant in the written statement further alleged  

that the respondent has also not mentioned as to how many  

houses are there in these villages; how many persons are  

living  in  each of  the  houses;  and how many  persons  are  

voters  in  these  villages.    The  respondent  has  also  not  

mentioned as to how many villages have water connections;  

and when and where the water scarcity had been noticed in  

these villages.  He has also not mentioned as to when this  

complete  breakdown  or  insufficient  water  supply  had

occasioned to these villages nor has he mentioned the date,  

time, place or any other details of such breakdown and has  

generally failed to give the details as required under section  

83 of the Act.    

20. In  the  written  statement  it  was  also  stated  that  the  

drilling machines allegedly owned by Tejaswini  Bore Wells  

which  were  being  operated  at  Ambeudok.   There  is,  

therefore,  no  concrete  evidence  that  the  boreholes  drilled  

were  bore  wells  to  establish  the  flow  of  water  from  the  

ground table to surface ground.  Similarly, the respondent  

has miserably failed to give particulars as to which villages  

did  not  have  ambulances  and  what  was  the  number  of  

voters in the said villages.  The respondent has failed to give  

particulars regarding parking of the ambulances i.e. where  

these ambulances were parked; in which villages they were  

parked;  whether  there  was  any  driver  to  drive  the  said  

ambulances and as to where they were parked.  Similarly,  

the respondent failed to give particulars regarding the bore  

wells  whose  cost  as  alleged  amounts  to  Rs.6,38,557/-.  

Similarly, expenditure of Rs.12,50,000/- has been alleged to  

have  been  made  for  the  purchase  of  ambulances.   The

particulars have not been provided.  It is not clear as to how  

the  respondent  has  come  to  the  figure  of  Rs.5,00,000/-  

which according to him has been spent by the appellant.  He  

did not give any particulars regarding either of the bore wells  

or the ambulances.  

21. `The  appellant  denied  crossing  the  limit  of  

Rs.5,00,000/-  as  prescribed under  the  Act  and the Rules  

framed thereunder. It is also alleged that the appellant did  

not  construct  any  bore  wells  nor  did  he  provide  any  

ambulances to the villagers and, therefore, the question of  

showing the same in the election expenses did not arise at  

all.  The appellant denied that an amount of Rs.6,38,557/-  

and an amount of Rs.12,50,000/- as alleged has been the  

expenditure factually incurred by the appellant and denied  

having committed any corrupt practice. The question of the  

election results being materially affected does not arise at all  

and, therefore, the election petition is liable to be dismissed.

22. It was specifically argued that the election petition is  

liable  to  be  dismissed  because  there  has  been  non  

compliance of section 83(1) of the Act because there was no

sufficiency  and  adequacy  of  pleadings  in  the  election  

petition.   Section 83(1) of the Act reads as under:

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.”    

23. According  to  the  appellant,  the  High  Court  had  

erroneously held that the election petition is not liable to be  

dismissed in limine under section 86 of the Act for alleged  

non-compliance of the provisions of section 83(1) of the Act.  

24. In the impugned judgment, the High Court erroneously  

concluded that the election petition when read as a whole  

discloses  that  it  has  material  facts  stated  and  regarding  

which triable issues are also framed and, therefore, it cannot  

be rejected at the preliminary stage.   

25. The  High  Court  in  the  impugned  judgment  has  

discussed the decision of this Court in Dhartipakar Madan  

Lal  Agarwal  v.  Rajiv  Gandhi  (1987)  Supp.  SCC  93.  

According  to  the  appellant,  the  High  Court  erroneously  

distinguished this case.  The impugned judgment of the High  

Court is neither in consonance with the provisions of the Act  

nor  according  to  the  settled  legal  position  as  has  been  

crystallized in a number of cases by this court.

26. Being  aggrieved  by  the  impugned  judgment,  the  

appellant has preferred this appeal.   

27. In  this  election  petition,  respondent  no.1  has  

challenged appellant’s  election primarily  on the  ground of  

corrupt practices, alleging that the appellant dug bore wells  

in  the  constituency  and  provided  ambulances  after  the  

election notification was issued in order to lure the voters

from  the  constituency  or  induce  them  to  vote  for  the  

appellant.   According  to  the  appellant,  the  aforesaid  

allegations do not even on their face value constitute corrupt  

practices within the meaning of Section 100 or section 123  

of the Act.  The Act postulates or contemplates bribery to  

mean  any  gift,  offer  or  promise  by  a  candidate  of  any  

gratification with the object, directly or indirectly of inducing  

any elector in order to make him vote for him.

28. For reference, section 100 and section 123 of the 1951  

Act read as under:-

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

(a)  that  on  the  date  of  his  election  a  returned  candidate was not qualified,  or was disqualified,  to be chosen to fill the seat under the Constitution  or this Act or the Government of Union Territories  Act, 1963 (20 of 1963); or  

(b) that any corrupt practice has been committed  by a returned candidate or his election agent or by  any  other  person  with  the  consent  of  returned  candidate or his election agent; or  

(c)  that  any  nomination  has  been  improperly  rejected; or  

(d) that the result of the election, in so far as it  concerns  a  returned  candidate,  has  been  materially affected-

(i) by the improper acceptance or any nomination,  or  

(ii)  by  any  corrupt  practice  committed  in  the  interests  of  the  returned candidate by an agent  other than his election agent, or  

(iii) by the improper reception, refusal or rejection  of any vote or the reception of any vote which is  void, or  

(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.  

(2)  If  in  the  opinion  of [the  High  Court,  a  returned candidate has been guilty  by an agent  other  than  his  election  agent,  of  any  corrupt  practice but the High Court is satisfied-  

(a) that no such corrupt practice was committed  at  the  election  by  the  candidate  or  his  election  agent,  and  every  such  corrupt  practice  was  committed  contrary  to  the  orders,  and  [without  the  consent],  of  the  candidate  or  his  election  agent;  

(b)  omitted

(c) that the candidate and his election agent took  all  reasonable  means  for  preventing  the  commission of corrupt  practices at the election;  and  

(d) that in all other respects the election was free  from  any  corrupt  practice  on  the  part  of  the  candidate or any of his agents,  

then the High Court may decide that the election  of the returned candidate is not void”.

“Section  123  -  Corrupt  practices  --  The  following shall be deemed to be corrupt practices  for the purposes of this Act:--

(1) "Bribery" that is to say--

(A) any gift offer or promise by a candidate or his  agent or by any other person with the consent of a  candidate  or  his  election  agent  of  any  gratification, to any person whomsoever, with the  objects, directly or indirectly of inducing--

(a)  a  person to  stand or  not  to  stand as,  or  to  withdraw  or  not  to  withdraw  from  being  a  candidate at an election, or

(b) an elector to vote or refrain from voting at an  election, or as a reward to-

(i) a person for having so stood or not stood, or for  having  withdrawn  or  not  having  withdrawn  his  candidature; or

(ii)  an elector for having voted or refrained from  voting;

(B)  the  receipt  of,  or  agreement  to  receive,  any  gratification, whether as a motive or a reward--

(a) by a person for standing or not standing as, or  for [withdrawing or not withdrawing] from being, a  candidate; or

(b) by any person whomsoever for himself or any  other person for voting or refraining from voting,  or inducing or attempting to induce any elector to  vote  or refrain from voting,  or any candidate  to  withdraw or not to withdraw his candidature.”

29. The appellant submitted that corrupt practices pleaded  

by respondent no.1 are limited to digging of 13 bore wells in

villages  falling  under  the  constituency  in  question  after  

notification of holding of election was issued.  The basis for  

this allegation that the machinery allegedly used to dig bore  

holes  in  the  ground  as  provided  in  paragraph  16  of  the  

election petition and the same machinery owned by a third  

party which was hired in the past to work for the Salgaoncar  

Mining Industries at Vagus Valley.

30. Respondent  no.1  in  paragraph  16  of  the  election  

petition  has  alleged  that  owner  of  the  Salgaoncar  Mining  

Industries  is  the  appellant  herein  and  on  this  basis  the  

conclusion is sought to be drawn and the averments made to  

the effect that “it is obvious that the cost of the said wells  

and the other wells were borne by the returned candidate  

through  his  business  concern,  namely  Salgaoncar  Mining  

Industries”.   

31. According to the appellant, the pleadings in the election  

petition regarding corrupt practice are limited to digging of  

bore wells only and there is no pleading on the material facts  

whether and in what manner the voters of the constituency  

were influenced to vote in favour of the appellant.  There is

no  pleadings  on  the  material  facts  whether  any  water  

drawing equipment was installed in the said bore holes so  

dug and that such bore holes became water bore wells and  

that the water could be drawn from them.   

32. The appellant submitted that there is total absence of  

material  pleadings so  as to  prove  that  due to  the  alleged  

corrupt practice the election has been vitiated in a manner  

that such bore holes not being dug by the appellant who has  

been returned as a winning candidate and either respondent  

no.2  or  respondent  no.1  could  have  been  returned  as  a  

winning candidate.

33. The material  fact  whether  such bore  holes  were  dug  

with the consent and/or active knowledge of the appellant is  

totally missing.

34. The  material  fact  regarding  the  estimates  of  costs  

involved is missing and is limited to the costs of drilling the  

bore holes and not of installing the water drawing plant and  

machinery  in  them  to  draw  water  from  the  bore  holes.  

According  to  the  appellant,  the  said  pleading  is  totally  

general and vague in nature.

35. The second allegation is regarding the alleged corrupt  

practice by purchasing 5 Maruti Ambulances in the name of  

his mining company viz. M/s Salgaoncar Mining Industries  

Pvt.Ltd.

36. According to the appellant, there are no material facts  

in the pleading of the election petition that for whose benefit  

such ambulances were deployed so as to constitute a ‘bribe’  

to  the  voters  and  that  to  an  extent  that  would  have  

influenced the outcome of the election.

37. The  appellant  also  submitted  that  there  are  no  

averments with regard to such ambulances being specifically  

deployed for the benefit of any elector in the constituency.  

38. The appellant submitted that any company operating  

mines  on  large  scale  with  heavy  machinery  is  under  an  

obligatory duty to maintain safety of the mines and is, as  

such,  statutorily  required  to  provide  required  facilities  

including deployment of ambulances in adequate numbers  

at various mines to ensure safety of the persons working in  

the  mines.    The  various  mines  of  Salgaoncar  Mining

Industries  are  spread  over  large  areas  falling  in  the  

constituency.

39. According to the appellant there is no material fact in  

the pleading of the election petition to the effect regarding  

the deployment of such ambulances at which specific places  

at  which  specific  time  and  for  the  benefit  of  whom  and  

whether that was done  at the behest and influence of the  

appellant.

40. According to the appellant, the third allegation pertains  

to the election expenses incurred by the appellant  on the  

basis of  that amount spent on digging of bore holes as well  

as  the  cost  of  5  ambulances  deployed  for  discharge  for  

statutory requirement for carrying out mining operations by  

a  company  ought  to  be  calculated  towards  the  election  

expenses incurred by the appellant is devoid of any merit in  

view of the insufficiency of pleadings in terms of ‘material  

facts’  with  respect  to  the  two  main  allegations  of  corrupt  

practices relating to digging of bore holes and purchase of 5  

ambulances.

41. According  to  the  appellant,  the  High  Court  in  the  

impugned  judgment  has  totally  misdirected  itself  by  

misconstruing  the  ratio  laid  down  in  a  catena  of  cases  

pronounced by this Court.  The other material questions of  

general importance arising in the petition for determination  

by this court are whether amenities or facilities provided in  

general and not in particular by a candidate or his agent or  

by any other person with the consent of the candidate, is a  

corrupt  practice  or  a  bribery  or  a  gratification  within  the  

meaning of section 100 (1)(b) read with section 123 (1) of the  

1951 Act.  According to the appellant,  the respondent did  

not furnish affidavit in Form 25 as required under Rule 94A  

of  the  Conduct  of  Election  Rules,  1961  and  in  terms  of  

proviso  to  Section  83  of  the  Act,  is  fatal  to  the  

maintainability  of  an  election  petition  on  the  ground  of  

corrupt practices.

42. According  to  the  appellant,  the  respondent  failed  to  

plead the fact  which constitutes  an offence under  section  

100 of the Act and the appeal deserves to be allowed and the  

election petition deserves to be dismissed.

43. The short question which falls for adjudication in this  

case is whether the election petition is liable to be dismissed  

because of lack of material facts.  This controversy is no long  

res  integra.    More  than  a  century  ago,  in  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."

44. In  Bruce v.  Odhams  Press  Ltd. (1936)  1  KB  697:  

(1936) 1 All ER 287 (CA),  Scott,  L.J. referring to  Phillips’  

case (supra) 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."

45. In  Halsbury’s Laws of England (4th Edn.), Vol. 36,  

para 38, it has been stated:

“38.  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.”

46. When we revert to the Indian cases, we find that our  

courts have accepted the principle laid down by the English  

cases.  We would like to refer to some of them.

47. In  Manubhai Nandlal Amorsey v.  Popatlal Manilal  

Joshi & Others (1969) 1 SCC 372, this Court observed as  

under:

“5.  The  first  question  is  whether  the  trial  judge  should  have  allowed  the  amendment.

Section 83(1)(b) provides that "An election petition  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  commit  such  corrupt  practice and the date and place of the commission  of each such practice". The section is mandatory… …………..”

48. In  Samant  N.  Balkrishna  &  Another v.  George  

Fernandez  &  Others (1969)  3  SCC  238,  this  Court  

observed as under:   

“37. From our examination of all  the cases  that were cited before us we are satisfied that an  election petition must set out a ground or charge.  In other words, the kind of corrupt practice which  was  perpetrated  together  with  material  facts  on  which a charge can be made out must be stated.  It  is obvious that merely repeating the words of  the  statute  does  not  amount  to  a  proper  statement of facts and the section requires that  material facts of corrupt practices must be stated.  If  the  material  facts  of  the  corrupt  practice  are  stated  more  or  better  particulars  of  the  charge  may be given later, but where the material facts  them-selves are missing it is impossible to think  that  the  charge  has been made or  can be later  amplified. This is tantamount to the making of a  fresh petition.”

49. In Hardwari Lal v. Kanwal Singh (1972)1 SCC 214, a  

three judge Bench of this Court observed as under:

“22. ………… The gravamen of the charge of  corrupt  practice  within  the  meaning  of  Section  123(7)  of  the  Act  is  obtaining  or  procuring  or  abetting or  attempting to obtain or procure  any  assistance  other  than the  giving  of  vote.  In  the  absence  of  any  suggestion  as  to  what  that  assistance was the election petition is lacking in  the  most  vital  and  essential  material  fact  to  furnish a cause of action.”

50. The question of materials facts in the election petition  

was  comprehensively  dealt  with  by  this  Court  in  Azhar  

Hussain’s case (supra).  The court observed that it is not  

disputed that the Code of Civil Procedure applies to the trial  

of  an  election  petition  by  virtue  of  section  87  of  the  

Representation of the People Act, 1950.  Section 87(1) and  

section  87(2)  of  the  Act  apply  to  the  election  petition.  

Section 87(1) of the Act reads as under:

“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 the suits ;  

Provided that the High Court shall have the  discretion to refuse, for reasons to be recorded in  writing, to examine any witness or witnesses if it  is of the opinion that the evidence of such witness  or witnesses is not material for the decision of the  petition or that the party tendering such witness

or witnesses is doing so on frivolous grounds or  with a view to delay the proceedings.  

(2) xxx xxx xxx”

51. In this view of the matter, the court trying the election  

petition  can  act  in  exercise  of  the  powers  of  the  Code  

including Order 6 Rule 16 and Order 7 Rule 11(a)  of  the  

Code.  These provisions are set out as under:

“Order  6,  Rule  16:  Striking  out  pleadings.—  The court may at any stage of the  proceedings order to be struck out or amend any  matter in any pleading—

a)  which may be unnecessary,  scandalous,  frivolous or vexatious; or

(b) which may tend to prejudice, embarrass  or delay the fair trial of the suit; or

(c)  which  is  otherwise  an  abuse  of  the  process of the court.

Order 7, Rule 11(a): Rejection of plaint.—  The plaint shall be rejected in the following cases —

a) where  it  does  not  disclose  a  cause  of  action;

xxx xxx xxx xxx xxx xxx”

42. The position is well settled that an election petition can  

be summarily dismissed if it does not furnish the cause of  

action  in  exercise  of  the  power  under  the  Code  of  Civil  

Procedure.   Appropriate orders in exercise of powers under

the  Code  can  be  passed  if  the  mandatory  requirements  

enjoined by Section 83 of the Act to incorporate the material  

facts in the election petition are not complied with.

53. This  Court  in  Samant N.  Balkrishna’s  case (supra)  

has expressed itself in no uncertain terms that the omission  

of a single material fact would lead to an incomplete cause of  

action  and  that  an  election  petition  without  the  material  

facts relating to a corrupt practice is not an election petition  

at all.

54. In Udhav Singh v. Madhav Rao Scindia (1977) 1 SCC  

511, the law has been enunciated that all the primary facts  

which must be proved by a party to establish a cause of  

action or his defence are material facts. In the context of a  

charge of corrupt practice it would mean that the basic facts  

which  constitute  the  ingredients  of  the  particular  corrupt  

practice alleged by the petitioner must be specified in order  

to succeed on the charge. Whether in an election petition a  

particular fact is material or not and as such required to be  

pleaded is dependent on the nature of the charge levelled  

and the circumstances of the case. All the facts which are

essential to clothe the petition with complete cause of action  

must be pleaded and failure to plead even a single material  

fact would amount to disobedience of the mandate of Section  

83(l)(a).  An election petition therefore can be and must be  

dismissed if it suffers from any such vice. The first ground of  

challenge must therefore fail.

55. In  V.  Narayanaswamy v.  C.P.  Thirunavukkarasu  

(2000) 2 SCC 294, this Court reiterated the legal position  

that an election petition is liable to be dismissed if it lacks in  

material facts.   

56. In  L.R.  Shivaramagowda  &  Others v.  T.M.  

Chandrashekar  (dead)  by  LRs  & Others (1999)  1  SCC  

666,  this  Court  again  considered  the  importance  of  

pleadings  in  an  election  petition  alleging  corrupt  practice  

falling  within  the  scope  of  Section  123  of  the  Act  and  

observed as under:

“11. This Court has repeatedly stressed the  importance  of  pleadings  in  an  election  petition  and pointed out the difference between "material  facts" and "material particulars". While the failure  to  plead  material  facts  is  fatal  to  the  election  petition and no amendment of the pleading could  be allowed to introduce such material facts after

the  time-limit  prescribed  for  filing  the  election  petition, the absence of material particulars can  be  cured  at  a  later  stage  by  an  appropriate  amendment……”

57. In Udhav Singh’s case (supra), this Court observed as  

under:

“41. Like the  Code of  Civil  Procedure,  this  section  also  envisages  a  distinction  between  “material  facts” and “material  particulars”.  Clause  (a) of sub-section (1) corresponds to Order 6, Rule  2, while clause (b) is analogous to Order 6, Rules  4  and  6  of  the  Code.  The  distinction  between  “material  facts”  and  “material  particulars”  is  important  because  different  consequences  may  flow from a deficiency of such facts or particulars  in  the  pleading.  Failure  to  plead  even  a  single  material  fact leads  to  an  incomplete  cause  of  action and incomplete allegations of such a charge  are liable to be stuck off under Order 6, Rule 16,  Code of  Civil  Procedure.  If  the petition is  based  solely on those allegations which suffer from lack  of  material  facts, the  petition  is  liable  to  be  summarily rejected for want of cause of action. In  the case of a petition suffering from a deficiency of  material  particulars the court has a discretion to  allow  the  petitioner  to  supply  the  required  particulars even after the expiry of limitation.”

58. In  H.D. Revanna’s case (supra), the appeal was filed  

by  the  candidate  who had succeeded in  the  election  and  

whose  application  for  dismissal  of  the  election petition  in  

limine was rejected by the High Court.  This Court noticed  

that  it  has  been  laid  down  by  this  Court  that  non-

compliance with the provisions of  Section 83 may lead to  

dismissal of the petition if the matter falls within the scope  

of Order 6 Rule 16 and Order 7 Rule 11 of the Code of Civil  

Procedure.

59. In  Harmohinder  Singh Pradhan v.  Ranjeet  Singh  

Talwandi & Others (2005) 5 SCC 46, this Court observed  

thus:

“14. Necessary  averment  of  facts  constituting  an  appeal  on  the  ground  of  “his  religion” to vote or to refrain from voting would be  material facts within the meaning of clause (a) of  sub-section (1) of  Section 83 of the Act. If  such  material  facts  are  missing,  they  cannot  be  supplied  later  on,  after  the  expiry  of  period  of  limitation for  filing the election petition and the  plea being deficient, can be directed to be struck  down under Order 6 Rule 16 of the Code of Civil  Procedure,  1908  and  if  such  plea  be  the  sole  ground of filing an election petition, the petition  itself can be rejected as not disclosing a cause of  action under clause (a) of Rule 11 Order 7 of the  Code.”

60. In Harkirat Singh  v. Amrinder Singh (2005) 13 SCC  

511,  this  Court  again  reiterated  the  distinction  between  

‘material  facts’  and ‘material  particulars’  and observed as  

under:

“51. 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 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.

52. 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.”

61. In Sudarsha Avasthi v. Shiv Pal Singh (2008) 7 SCC  

604, this Court observed as under:

“20. The election petition is a serious matter  and it  cannot be treated lightly  or  in a fanciful  manner nor is it given to a person who uses this  as a handle for vexatious purpose……………”

62. It is settled legal position that all “material facts” must  

be pleaded by the party in support of the case set up by him

within the period of limitation.  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 will entail dismissal of the election petition.  

63. The election petition must contain a concise statement  

of “material facts” on which the petitioner relies.  There is no  

definition of “material facts” either in the Representation of  

Peoples Act, 1951 nor in the Code of Civil Procedure. In a  

series of judgments, this court has laid down that all facts  

necessary to formulate a complete cause of action should be  

termed  as  “material  facts”.   All  basic  and  primary  facts  

which must be proved by a party to establish the existence  

of  cause of  action or defence are  material  facts.  “Material  

facts” in other words mean the entire bundle of facts which  

would constitute a complete cause of action.

64. This court in  Harkirat Singh’s case (supra) tried to  

give  various  meanings  of  “material  facts”.   The  relevant  

paragraph 48 of the said judgment is reproduced as under:-

“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.”

65. In the context of a charge of corrupt practice, “material  

facts” would mean all basic facts constituting the ingredients  

of  the  particular  corrupt  practice  alleged,  which  the  

petitioner  (respondent  herein)  is  bound  to  substantiate  

before he can succeed on that charge.  It is also well-settled  

that if “material facts” are missing they cannot be supplied  

after  expiry  of  period  of  limitation  for  filing  the  election  

petition and the pleading becomes deficient.   

66. According  to  the  appellant,  in  the  election  petition,  

there was no averment whether the bore wells were dug with  

the consent and/or active knowledge of the appellant.  This

averment  was  absolutely  imperative  and  the  failure  to  

mention such an important averment in the petition is fatal  

for  the  election-petitioner  (respondent  herein)  and  the  

election petition is liable to be summarily dismissed on that  

ground.

67. The legal position has been crystallized by a series of  

the judgments of this Court that all  those facts which are  

essential  to  clothe  the  election petitioner  with  a  complete  

cause of action are “material facts” which must be pleaded,  

and the failure to place even a single material fact amounts  

to disobedience of the mandate of section 83(1)(a) of the Act.

68. When we apply the aforementioned test to the election  

petition  in  this  case,  then  the  conclusion  becomes  

irresistible  that  the  election  petition  lacks  the  materials  

facts.  The election petition read as a whole does not disclose  

any  cause  of  action.   Considering  the  facts  and  

circumstances of this case and principles applicable to the  

election petition, this appeal deserves to be allowed and we  

accordingly  allow this  appeal.   Consequently,  the  election  

petition stands dismissed.

69. In the facts and circumstances of this case, we direct  

the parties to bear their own costs.

…….……………………..J.      (Dalveer Bhandari)

…….……………………..J.      (Harjit Singh Bedi)

New Delhi, August 20, 2009.