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CASE NO.: Appeal (civil)  845 of 2005

PETITIONER: HARKIRAT SINGH

RESPONDENT: AMRINDER SINGH

DATE OF JUDGMENT: 16/12/2005

BENCH: Y.K. Sabharwal, C.K. Thakker & P.K. Balasubramanyan

JUDGMENT: J U D G M E N T

C.K. THAKKER, J.

The present appeal is directed against the judgment and order  dated 3rd November, 2004 passed by the High Court of Punjab &  Haryana in Election Petition No. 26 of 2002. By the said Order, the  High Court dismissed the Election Petition filed by the appellant- petitioner upholding preliminary objection raised by the respondent  that the petitioner had failed to disclose material facts as to corrupt  practice constituting the cause of action in the election petition. To appreciate the controversy raised in the present appeal, few  relevant facts may be stated. On December 26, 2001, election for  constitution of Punjab Legislative Assembly was announced. On  January 16, 2002, Hon’ble the President of India issued a notification  calling upon the electors in the State of Punjab to elect their  representatives for Punjab Vidhan Sabha. Various stages of election  were fixed. As per the notification, January 23, 2002 was the last date  for filing nominations by candidates aspiring to be elected to Punjab  Vidhan Sabha. Scrutiny of nomination papers was fixed as January  24, 2002 and the last date of withdrawal of nomination was January  28, 2002. Polling was to take place on February 13, 2002 and  February 24, 2002 was the date of the counting of votes and of  declaration of result. The respondent herein filed his nomination from 76, Patiala  Town Assembly Constituency as the candidate nominated by  Congress (I) Party. The respondent was declared as elected. He was  also elected as the leader of the Party and became the Chief Minister  of Punjab.

The appellant herein-petitioner before the High Court- was an  elector in the constituency from which the respondent contested the  election. The petitioner filed an Election Petition in the High Court  under Section 81 of the Representation of the People Act, 1951  (hereinafter referred to as ’the Act’) questioning the election of the  respondent to the Punjab Legislative Assembly from 76, Patiala Town  Assembly Constituency on the ground of corrupt practice as detailed  in the Election Petition. A prayer was, therefore, made to declare the  election of the respondent void and for issuing appropriate  consequential directions. In the Election Petition, it was alleged by the petitioner that the  respondent had committed ’corrupt practice’ as enumerated in Section  123 of the Act. The particulars of corrupt practices committed by the  respondent were mentioned by the petitioner in the petition. In paras 4  and 5 of the Election Petition, the petitioner stated that one Bharat  Inder Singh Chahal was a Government Servant holding Class I  gazetted post as Joint Director, Information & Public Relations

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Department, Punjab who helped the respondent immensely during the  election campaign of the respondent and despite his being holder of a  post under the State Government, had actively been organizing,  conducting and participating personally in the press conferences  addressed by the respondent for the furtherance of respondent’s  election prospects. Particulars of corrupt practices committed by the  respondent had also been stated. It was asserted that on January 29,  2002, Mr. Chahal organized a Press Conference for the respondent at  New Moti Bagh Palace, Patiala along with the respondent for  enhancing the election prospects of the latter. An audio-video cassette  containing about 12 minutes clipping was recorded which news  appeared in English dailies ’Tribune’, ’Indian Express’ and ’Times of  India’. According to the petitioner, he was able to procure a copy of  the cassette from one Mr. Jagdeep Singh Chowhan without any  manipulation, dubbing or interpolation. It was also stated that Mr. G.S. Cheema, Chief Electoral  Officer, Punjab during media briefing on 4th February, 2002 at the  office of the Chief Electoral Officer in Sector No.17, Chandigarh  disclosed that Mr. Chahal had actively participated in the election  process. The Election Commission, therefore, directed Secretary,  Punjab Information & Public Relations to take disciplinary action  against Mr. Chahal for violating the code of conduct and for actively  participating in Congress’ election campaign. Likewise Mrs. Usha R.  Sharma, Additional Chief Electoral Officer, during media briefing on  February 6, 2002 stated that the Election Commission of India had  pulled up the Punjab Government and asked the Chief Secretary of  Punjab to look into the matter as to why action had not been initiated  against Mr. Chahal for the alleged violation of the Election Code and  for assisting the respondent. According to the petitioner, this had gone  long way to show that Mr. Chahal actively participated "to the  knowledge of the respondent and with the consent of the respondent"  for the furtherance of his election prospects in violation of the  provisions of Section 123 of the Act. The Secretary, Information &  Public Relations, Government of Punjab issued a show cause notice  to Mr. Chahal over his reported work for the Congress candidate. Mr.  Cheema had also written to Mr. N.K. Arora, Chief Secretary, Punjab  seeking action against Mr. Chahal for alleged partisan role and for his  misconduct. Mrs. Usha R. Sharma further disclosed that a complaint  filed by one Mr. J.S. Chowhan had been forwarded to the Election  Commission of India as also to the Secretary, Information & Public  Relations, Punjab recommending that action should be taken against  Mr. Chahal as complaint had been prima facie established. A  Committee was constituted to look into the audio-video cassette and  to examine the role of Mr. Chahal. According to the petitioner, the  Committee of Information & Public Relations Department submitted  a report that Mr. Chahal was present at the Press Conference of the  respondent. The Committee allowed Mr. Chahal to see the cassette  following the principles of natural justice and asked him to submit his  reply by February 8, 2002 explaining his conduct. The Committee  forwarded the report to the Chief Electoral Officer, Punjab as also to  the Election Commission of India. The above facts were disclosed by  Mr. Cheema, Chief Electoral Officer in a media briefing on February  7, 2002 at Chief Electoral Officer’s office at Chandigarh. On February 8, 2002, the Secretary, Information & Public  Relations Department, Punjab recommended to the Cabinet Minister  for Information & Public Relations Department to issue charge-sheet  to Mr. Chahal for a major penalty on his having worked actively for  the election campaign of the Chief of the Punjab Pradesh Congress  Committee-respondent herein. In para 6 of the petition, the petitioner stated that Mr. Chahal  played a dominant, significant and active role during the election  campaign of the respondent which fact was further corroborated from  the fact that Mr. Chahal was suitably rewarded for herculean efforts  put up by him with his appointment on February 28, 2002 as Advisor  to the Chief Minister-respondent herein.

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It was stated that the respondent took oath as Chief Minister of  Punjab on February 27, 2002. He accepted the resignation of Mr.  Chahal as Joint Director, Public Relations Department, Punjab on  February 28, 2002. On the same day, the respondent appointed Mr.  Chahal as ’Advisor to the Chief Minister’ and an appointment letter  was issued. In the ’Indian Express’ dated March 1, 2002, it was  reported that Mr. Chahal’s career in Public Relations Department was  marked by ’string of controversies’ (para 7). The petitioner, in the election petition, has also said about other  corrupt practices adopted by the respondent. In paras 8 and 9, it was  averred that the respondent had procured assistance of one Gurnam  Singh Mehra, Superintendent of Police, Patiala for furtherance of the  prospects of his election. The details of the corrupt practice had also  been specified in para 9 of the petition. It was said that Mr. Mehra  belonged to Kashyap Rajput community. Mr. Mehra organized a  function on January 26, 2002 in favour of Congress candidate for 76,  Patiala Town Assembly Constituency (of the respondent) which was  presided over by Smt. Preneet Kaur, Member of Parliament, Patiala  and wife of the respondent. The meeting was organized at Marriage  Palace near Railway Phatak No.22, Patiala. For the said meeting, Mr.  Mehra used the office of his newly created Mehra Biradri Social  Sangathan in which posters were distributed with a photograph of Mr.  Mehra as Superintendent of Police in police uniform describing the  respondent as ’Garibon Ka Massiha’. The name of the Sangathan was  shown at the bottom. Mr. Mehra thus canvassed for the respondent in  the said meeting. Those facts appeared as a news item in the English  edition of the ’Tribune’ dated February 5, 2002. According to the petitioner, the respondent also committed  corrupt practice by indirectly interfering with the free exercise of  electoral rights by projecting himself as the ’Maharaja of Patiala’ in  the posters issued by the respondent and also by his supporters with  his consent. Finally, the petitioner alleged that the respondent had incurred  expenses far more than the prescribed limit of Rs.6 lakhs under Rule  90 of the Conduct of Election Rules, 1961 (hereinafter referred to as  ’the Rules’) and maintained improper and incorrect accounts of the  expenditure incurred and thereby he violated the provisions of Section  77 of the Act. The respondent had not shown the expenses of Press  Conference held on January 29, 2002 at New Moti Bagh Palace,  Patiala or of the ’heavy tea’ served at the said conference in his  election return (para 11). On the basis of above allegations, the petitioner stated that the  election of respondent to 76, Patiala Town Assembly Constituency  was liable to be declared void under Section 100 of the Act. The  election petition was verified and was filed on April 10, 2002. A reply in the form of written statement was filed by the  respondent controverting the averments made and denying the  allegations levelled by the petitioner in the election petition.  Preliminary objections were also raised by the respondent, inter alia,  contending that the election petition was liable to be dismissed as the  petitioner had failed to comply with the mandatory requirement of  filing an affidavit in Form 25 read with Rule 94-A of the Rules as  required by Section 83 of the Act. According to the respondent, the  affidavit was not legal and valid. An affidavit, under the Rules, was  required to be attested either on oath or on solemn affirmation. The  affidavit filed by the petitioner was neither sworn nor it was on   solemn affirmation. Both the expressions ’sworn’ and ’solemn  affirmation’ were mentioned mechanically. The affidavit thus did not  conform to the mandatory requirement of Form 25 read with Rule   94-A and the petition was liable to be dismissed on that ground. It was also stated that the election petition did not contain  "material facts" much less "material particulars" of alleged corrupt  practices mentioned in the election petition. The so called allegations,  stated the respondent, were vague, bald, unnecessary, irrelevant,  frivolous and did not disclose any cause of action. The averments

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were intended to prejudice, embarrass and delay fair trial of the  election petition. Paras 6 and 7 of the election petition were liable to be struck  off being unnecessary. The averments in those paras did not pertain to  the period from the date of filing of the nomination papers, had no  relevance and did not fall within the ambit and scope of Section 100  read with Section 123 of the Act. Contents of para 4 did not disclose  material facts but the language of Section 123(7)(a) of the Act had  been mechanically reproduced by the petitioner. According to the  respondent, para 4 did not contain material facts as to how and in  what manner the help of Mr. Chahal was sought or obtained for  furtherance of the election result of the respondent, in what form the  so called assistance was rendered and how it affected the electoral  rights of the voters of 76, Patiala Town Assembly Constituency. Para  5 similarly did not disclose material particulars required by law. The  reference to organizing, conducting and participating personally in  press conferences by Mr. Chahal addressed by the respondent was  vague, scandalous and frivolous. The contents failed to disclose  essential ingredients of corrupt practice as contemplated by Section  123(7)(a) of the Act. The so called press conference dated January 29,  2002 was organized and addressed by the respondent as President of  the Punjab Pradesh Congress Committee and it had absolutely no  connection with his election to 76, Patiala Town Assembly  Constituency. The respondent has also stated that it was not disclosed  by the petitioner as to who was the author of the audio-video cassette,  how the copy of the cassette came to the hands of Jagdeep Singh  Chowhan and how the said copy was free from any manipulation,  dubbing and interpolation particularly when the original audio-video  cassette was not on record. Even the transcript in English of the  cassette had not been produced. Regarding assistance of Mr. Mehra, Superintendent of Police,  Patiala, it was contended by the respondent that in the absence of  basic ingredients of Section 123(7)(d) of the Act that the function  held on January 26, 2002 was with the consent of the respondent or  his election agent, there was nothing to show how it could connect the  respondent with the said function. As to the allegation of respondent projecting himself as  ’Maharaja of Patiala’, it was stated that no such poster had been  placed on record nor the contents of the poster had been reproduced.  Thus, no material facts had come on record of undue influence. Regarding election expenses, the averments were totally vague,  unnecessary and frivolous. The averments had been made with a view  to prejudice and embarrass, with the object of delaying fair trial of the  election petition. The provisions of Section 77 were not attracted. On merits also, it was contended by the respondent that no  corrupt practice had been adopted by him and the allegations levelled  against him were incorrect. It was, therefore, submitted that the  election petition was liable to be dismissed. A replication to the written statement of the respondent was  filed by the petitioner contending that the preliminary objections  raised by the respondent were incorrect and false. Regarding affidavit  and verification, it was stated that if the Court comes to the  conclusion that there were some defects in the affidavit, permission  may be granted to the petitioner to file a fresh affidavit. So far as  corrupt practices are concerned, according to the petitioner, material  facts and particulars had already been stated in the election petition.  The allegations were clear, precise and disclosed a cause of action.  The averments made in the election petition have been reiterated in  the replication by giving several instances. It was repeated that  corrupt practice had been adopted by the respondent. The election  petition was thus required to be allowed by setting aside the election  of the respondent. On the basis of rival contentions of the parties, the High Court  framed nine issues. It was contended on behalf of the respondent that  the election petition was liable to be dismissed as preliminary

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objections raised by the respondent were well founded. The Court,  accordingly ordered to treat issue Nos. 5 to 8 as preliminary issues  which were as under: 5. Whether the election petition is liable to be dismissed  as the allegations of corrupt practice are not  supported by a valid and legal affidavit as mentioned  in preliminary objection No.1 and 2 of the written  statement? OPR

6. Whether the election petition lacks material facts and  particulars and discloses no cause of action as  mentioned in preliminary objection No.3 to 10 of the  written statement? OPR

7. Whether the election petition is liable to be dismissed  being incomplete as mentioned in para no.11 of the  preliminary objections of the written statement?  OPR

8. Whether the election petition is not verified as  required under Order 6 Rule 15 of C.P.C., if so its  effect? OPR

Issues 5 and 8 related to the affidavit and verification of  election petition. After considering the submissions of both the sides  and referring to the relevant provisions of law in the light of   decisions of this Court, the High Court held that the election petition  was not liable to be dismissed on the ground of defect, if any, in  verification and affidavit. Even if there was some defect, it was  ’curable’ and not fatal to the election petition. The Court also  observed that along with the replication, the petitioner had placed on  record an affidavit which was in conformity with the provisions of  Rule 94-A and From 25 appended to the Rules. The affidavit was  allowed to be placed on record without any objection by the other  side. The issues were thus decided in favour of the election petitioner. So far as issues 6 and 7 are concerned, the Court was called  upon to consider whether the election petition lacked ’material facts’  and ’particulars’ and did not disclose a cause of action and was liable  to be dismissed being incomplete as contended by the respondent.  The Court stated that it was well established that an election petition  was supposed to disclose all ’material facts’ to constitute a complete  cause of action. According to the Court, an election petition should  contain concise statement of material facts and it was necessary ’to  disclose fullest possible particulars’. The Court stated that the  counsel cited several judgments showing the distinction between  ’material facts’ and ’material particulars’. Referring to a decision of  the Supreme Court in Hardwari Lal v. Kamal Singh, (1972) 1 SCC  214 : (1972) 2 SCR 742, the Court said that the material facts are  facts which if established would give the petitioner the relief asked  for. If the respondent would not appear, the Court would give verdict  in favour of the petitioner. The said view was reiterated by the Court  in subsequent cases also. Then referring to para 4 of the election  petition, the Court observed that the said para only contained  ’reproduction of the wording of Section 123(7)(a) of the Act’. In the  opinion of the Court, therefore, para 4 of the petition could not be  treated as the statement of material facts regarding corrupt practice.

In respect of material facts and particulars given in para 5(i)  regarding corrupt practice adopted by the respondent, the Court  opined that though it had been stated that Mr. Chahal, a Gazetted  Officer of the State of Punjab had helped the respondent immensely  during his election and had actively been organizing and conducting  personally, press conferences addressed by the respondent for the  furtherance of his election prospects, no date, time and place of

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organizing any press conference had been mentioned by the  petitioner. The Court then observed; "Whether by the use of words actively organizing,  conducting and participating in press conferences  without any further detail will constitute a material fact,  which may lead towards formation of a complete cause  of action or not. This Court feels that the answer is in  the negative". (emphasis supplied)

The Court observed that in sub-para (ii) of para 5, one instance  of press conference which was allegedly held on January 29, 2002 by  Mr. Chahal had been given. It was stated that Mr. Chahal organized  the press conference in New Moti Bagh Palace i.e. residence of the  respondent. Mr. Chahal was personally present with the respondent  and meticulously organized each and every affair for better result  with the object of enhancing the prospect of the respondent. In sub- para (iii), it was stated that the petitioner was able to procure a copy  of the cassette without any manipulation. As to the allegations in sub-paras (i), (ii) and (iii) of para 5,  this is what the Court had to say; "A reading of sub-paras (i), (ii) & (iii) clearly  demonstrate that the petitioner has failed to disclose as  to what was the purpose of press conference, what was  agenda for the same, who were the press correspondents  invited and who invited them and whether any press  note was prepared at the time of press conference or not,  what was addressed to the press correspondents, it has  nowhere been stated that whether any voter of the  constituency, in dispute, was present at the time of press  conference".

The Court also stated that the petitioner had not stated as to  whether any proceedings of the press conference were published in  the news paper on the next day, what were the contents of those  publications and what was its effect on the general electorate in the  constituency. The Court went on saying that the petitioner had failed  to give the name of a single person who had read the reporting  regarding press conference, which was allegedly conducted on  January 29, 2002. It was no where stated as to how the will of the  electorate was affected and how the press conference was an attempt  for the furtherance of electoral prospects of the returned candidate. It appears that at the time of hearing of arguments, in the  presence of counsel for the parties, video cassette was seen by the  Court. The Court stated;         "At the time of arguments, in the presence of  counsel for the parties, video cassette was played in  Court. The Press Conference, as referred to above, was  being addressed by the respondent. He along with Press  Correspondents was seen sitting on chairs around a  table. Bharat Inder Singh Chahal was seen sitting on the  back side in second row. In between, he got up and had  a half circle of the conference hall i.e., Library Room of  the house of the respondent. At the time of press  conference, as was evident from the video cassette, light  snacks were served to the press correspondents. Shri  Chahal was not seen uttering a single word either to the  respondent or to any of the press correspondents. At the  time of arguments, Shri Saggar read over a transcript of  video cassette, which clearly demonstrated that at the  time of press conference, no appeal was made to the  electorate of the constituency of the respondent.  Conference was conducted with respect to expulsion of  rival candidates from the congress party. It has nowhere  been pleaded as to what was the object and method of

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assistance provided by Bharat Inder Singh Chahal."

Then relying on a decision of the Supreme Court in Daulat  Ram Chauhan v. Anand Sharma, (1984) 2 SCC 64 : AIR 1984 SC  621, the Court observed that the allegations made in the election  petition could not be said to be in the nature of ’material facts’ as no  details were given. The Court stated that in the replication, all details  were given but they were "material facts" which the petitioner was  required to state in his election petition and not in the replication  which was filed beyond the period of limitation. Since in the election  petition material facts had not been stated, the petition did not  disclose a cause of action and was, therefore, liable to be dismissed. Regarding a complaint made by Jagdeep Singh Chowhan to  the Chief Electoral Officer, the Court observed that in the election  petition it was stated that a Committee was constituted in view of  allegation that Mr. Chahal had violated the code of conduct and  disciplinary action was required to be taken against him. It was  recommended to issue notice to Mr. Chahal for major penalty, but the  petition was silent whether such notice was issued or not. During the  arguments, it transpired that no such notice was issued despite  recommendation made by the Chief Electoral Officer. In connection  with news items, the Court noted that those news items no where  indicated as to what was the quantum of help sought from and  rendered by Mr. Chahal to the respondent. In paras 6 and 7 of the petition, a reference was made  regarding acceptance of resignation of Mr. Chahal by the respondent  and his appointment as Advisor to the Chief Minister. According to  the Court, facts mentioned in those paras would have been a  ’corroborative piece of evidence’ if the petition was capable to be  proceeded with but as the petitioner had failed to state material facts  in that regard, he could not get the benefit of the subsequent  development. On the allegation of assistance of Mr. Mehra, Superintendent  of Police, according to the Court, no material fact had been disclosed  by the petitioner in the petition. On the meeting held at the Moti Bagh  Palace near Railway Phatak No.22 in which posters were distributed  with photograph of Mr. Mehra in police uniform, describing the  respondent as "Garibon Ka Massiha" showing the name of Mehra  Biradari Social Sangathan, the Court stated;  "This Court feels that averments made in this paragraph  are very vague. It has not been stated as to what was the  purpose of that meeting, who were participants, whether  any voter from the constituency in dispute had come  there, what was said by Mr. Mehra and how he tried to  influence the voters."

The Court went on to observe that it had no where been stated  as to what were the contents of that poster, who published it, whether  it was circulated and who read it. The Court, therefore, felt that the  petitioner had failed to disclose material facts as required by law.

As to allegation of projecting himself as ’Maharaja of Patiala’  in a poster issued by the respondent, the Court stated that the  petitioner had failed to disclose material facts as there was nothing to  show that the poster was issued by the respondent or by his  supporters with his consent. Regarding election expenses, the Court observed that mere non  disclosure of expenditure would not be a corrupt practice. It is  incurring of expenditure in excess of the prescribed limit which will  amount to a corrupt practice. According to the Court, very vague  averments had been made simply by stating that the respondent had  incurred the expenses more than the prescribed limit, but no details  had been given.  According to the Court, in the election petition, it  was stated that the respondent had not shown expenses of press  conference  held on January 29, 2002 in his return of expenses but

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nothing had been stated as to what was the total expenditure and the  details had been given only in the replication. Then referring to the  video-cassette, the Court observed that only light snacks, tea and cold  drinks were served to the press correspondents. The Court stated; "By taking judicial note of the same, it can be said that  even if those expenses are ordered to be included in the  election expenses of the respondent, the total expenses  still shall remain much below the prescribed limit".

In view of the above findings, the Court dismissed the petition  by passing the following order;         "Despite decision on issues No.5 and 8 in favour  of the petitioner, this petition, in view of findings on  issues No.6 and 7, cannot proceed further as the  petitioner has failed to disclose material facts regarding  corrupt practice, as alleged, to constitute a complete  cause of action, on the basis of which any relief can be  granted to him. Accordingly, this election petition fails  and the same is dismissed. No order as to costs".

On February 28, 2005, after hearing the learned counsel for the  appellant, the appeal was admitted.  In view of the fact that the  election petition was dismissed at the threshold on the ground that it  did not disclose cause of action, the matter was placed for final  hearing.  We have heard Mr. P.S. Mishra, senior Advocate for the  appellant and Mr. R.S. Cheena, Senior Advocate for the respondent. Before we deal with the respective contentions of the learned  counsel for 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.  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.

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Section 84 deals with relief that can be claimed by the  petitioner in an election petition. Section 86 relates to trial of election  petitions. It mandates the High Court to dismiss an election petition  which does not comply with the provisions of Sections 81, 82 or 117.  (Section 117 requires the election petitioner to deposit certain amount  as security for costs of the petition). Sub-section (5) of Section 86 is  an enabling provision and reads as under; (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 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.

Section 100 enumerates grounds on which election of a  returned candidate may be challenged and declared void.  Commission of corrupt practice by a returned candidate is one of the  grounds for declaring an election to be void. The relevant part of  Section 100 reads thus; 100. Grounds for declaring election to be void\027(1)  Subject to the provisions of sub-section (2) if the High  Court is of opinion\027 (a)     \005                    \005                            \005 (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 a returned  candidate or his election agent;         \005                    \005                            \005           the High Court shall declare the election of the  returned candidate to be void.

       \005                    \005                            \005

Section 123 declares certain practices as ’deemed to be corrupt  practices’. The material part of the said section reads as under:-

       "123.  Corrupt practices. \026The following shall be  deemed to be corrupt practices for the purposes of this Act:\027 (1)   \005                      \005                            \005 (2) Undue influence, that is to say, any direct or indirect  interference or attempt to interfere on the part of the  candidate or his agent, or of any other person with the  consent of the candidate or his election agent, with the free  exercise of any electoral right:                  Provided that\027 (a)     without prejudice to the generality of the provisions of  this clause any such person as is referred to therein  who\027  (i) threatens any candidate or any elector, or any  person in whom a candidate or an elector  interested, with injury of any kind including social  ostracism and ex-communication or expulsion from  any caste or community; or  

(ii) induces or attempts to induce a candidate or an  elector to believe that he, or any person in whom  he is interested, will become or will be rendered an  object of divine displeasure or spiritual censure,

shall be deemed to interfere with the free exercise of

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the electoral right of such candidate or elector within  the meaning of this clause;

(b)  a declaration of public policy, or a promise of  publication, or the mere exercise of a legal right  without intent to interfere with an electoral right,  shall not be deemed to be interference within the  meaning of this clause.

(3)        \005                                 \005                        \005 (4)    \005                             \005                        \005         (5)    \005                             \005                        \005 (6) The incurring or authorizing of expenditure in           contravention of section 77. (7) The obtaining or procuring or abetting or attempting to  obtain or procure by a candidate or his agent or, by any  other person with the consent of a candidate or his election  agent, any assistance (other than the giving of vote) for the  furtherance of the prospects of that candidate’s election,  from any person in the service of the Government and  belonging to any of the following classes, namely:--

(a) gazetted officers; (b)    \005                             \005                             (c)    \005                             \005                     (d) members of the police forces;         \005                            \005                            \005

Section 77 speaks of election expenses and maximum amount  which can be spent.  Section 78 enjoins every candidate at an election  to lodge account with the District Election Officer. From the above provisions, 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 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 leadings case of Phillips v. Phillips, (1878) 4 QBD 127 :  48 LJ QB 135, Cotton, L.J. stated:

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"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 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 connection with election matters, this Court has considered  the question in several cases.  In Balwan Singh v. Lakshmi Narain &  Ors., 1960 (3) SCR 91 : AIR 1960 SC 770, in an election petition, an  allegation of corrupt practice of hiring or procuring vehicles by  returned candidate had been made.  It was contended on behalf of the  respondent that full particulars as to contract of hiring vehicles had  not been set out in the election petition. The petition was, therefore,  liable to be dismissed. The Constitution Bench of this Court was

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called upon to consider the requirement of Sections 83 and 123 of the  Act in the light of the allegation in the election petition.  Speaking for  the majority, Shah, J. (as his Lordship then was) observed that neither  in the petition as originally filed nor as amended, the date and place  of hiring of vehicle alleged to have been used for conveying the  voters, and the names of the persons between whom the contract of  hiring was settled were set out.  The question, however, was whether  the election petition was liable to be rejected because it did not set  forth particulars of date and place of hiring the vehicle alleged to  have been used in conveying voters?  The Court answered the  question in the negative and stated; "The corrupt practice being the hiring or procuring of a  vehicle for the conveyance of the electors, if full  particulars of conveying by a vehicle of electors to        or  from any  polling  station are given,  Section 83 is  duly complied with, even if the particulars of the  contract of hiring, as distinguished from the fact of  hiring, are not       given. Normally, the arrangement for  hiring or procuring  a vehicle, is within the special  knowledge of the parties to  that  agreement    and it is  difficult to assume that  it as intended to require the  petitioner in an election dispute to  set  out the  particulars of  facts  within  the   special knowledge  of  the other party, and expose the petition to  a   penalty of   dismissal  if those particulars  could  not b given.  If  particulars in support of the plea of the vehicle being  hired or procured by the candidate  or  his     agent or by  another person was used  for  conveying  voters  to or  from the polling station are set out,  failure  to  set out  particulars of  the  contract  of        hiring or arrangement   of      procuring  will  not  render  the  petition        defective".

The Court proceeded to observe; "The practice to be followed in cases where insufficient  particulars of a corrupt practice are set forth in an  election petition is this.  An election petition is not liable  to be dismissed in limine merely because full particulars  of a corrupt practice alleged in the petition, are not set  out. Where an objection is raised by the respondent that  a petition is defective because full particulars of an  alleged corrupt practice are not set out, the Tribunal is  bound to decide whether the objection is well founded.    If  the Tribunal upholds the  objection, it should  give an  opportunity to the petitioner to apply for leave  to   amend or amplify the particulars of  the  corrupt  practice alleged;  and in the event of noncompliance   with that  order  the Tribunal may strike out the   charges  which  remain  vague.  Insistence upon full  particulars of  corrupt practices  is undoubtedly of  paramount       importance  in the trial of an election  petition, but if the  parties  go to trial despite the absence  of full particulars of the corrupt practice alleged, and  evidence of the contesting parties is led on the plea        raised  by the petition, the petition cannot  thereafter be        dismissed  for want of particulars, because the defect is  one of procedure and not one of jurisdiction of the  Tribunal to  adjudicate upon the plea in the absence of   particulars". (emphasis supplied)        

In R.M. Seshadri v. G. Vasantha Pai, 1969 (1) SCC 27,  allegation as to corrupt practice had been made in the election  petition.  It was alleged that the returned candidate was responsible  for employing cars, hired and procured for the conveyance of the

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voters to the polling booths.  It was contended by the returned  candidate that the allegation was vague and the petition was liable to  be dismissed.  Rejecting the contention, the Court held that it had  been sufficiently pleaded and proved that cars were in fact used.  The  connection with the returned candidate with the use of the cars had  been specifically pleaded.  In the opinion of the Court, "the rest were  matters of evidence which did not require to be pleaded and that plea  could always be supported by evidence to show the source from  where the cars were obtained, who hired or procured them and who  used them for the conveyance of voters."  (emphasis supplied) In S.N. Balakrishna etc. v. George Fernandez & Ors. etc.,  (1969) 3 SCC 238 : AIR 1969 SC 1201, the Court again considered a  similar question.  Referring to the relevant provisions of the Act, the  Court held that Section 83 which provides that the election petition  must contain a concise statement of material facts on which the  petitioner relies and further that he must also 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 is mandatory.  Then, drawing the  distinction between ’material facts’ and ’particulars’, the Court  observed; "What is the difference between material facts and  particulars?     The word ’material’ shows that the facts  necessary to formulate a complete cause of action must  be  stated. Omission of a single material fact leads to  an   incomplete cause of action and the statement of claim  becomes bad. The function of particulars is to present as  full a picture of the cause of action with such further  information in detail as to make the opposite party  understand the case  he will have  to  meet.      There may   be  some overlapping  between material facts and   particulars  but        the  two  are  quite distinct.   Thus   the  material facts will  mention  that  a statement  of  fact (which must be set out) was made  and  it must be  alleged that it refers to the character and  conduct of  the  candidate that it is false or which  the  returned  candidate  believes  to be false or does not believe  to   be true  and that it is calculated to prejudice the chances   of the  petitioner.  In the particulars the name of the  person making the statement, with the date, time and  place will be mentioned.  The material facts thus will  show the ground  of corrupt      practice and the  complete cause of action  and    the particulars will give  the necessary information to present a full  picture  of   the     cause of  action.   In stating the material facts it  will not do merely to quote the words of the section  because then the efficacy of the words ’material facts’  will be lost.  The fact which constitutes the corrupt  practice must be stated and the fact must be correlated  to one of the heads of corrupt practice. Just  as  a  plaint  without disclosing a proper cause of action cannot be  said to  be a good plaint, so also an election  petition   without the  material  facts relating to a corrupt  practice   is  no election petition at all.  A petition which merely  cites the sections cannot be said to disclose a cause of  action where the allegation is the making of a false   statement.      That statement must appear and the  particulars must be full as to the   person   making  the   statement  and   the   necessary information".  

Referring to sub-section (5) of Section 86 of the Act which  allows the Court the amendment in the petition, the Court stated;

"The  power of amendment is given in respect of

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particulars but there is a prohibition against an  amendment "which will have  the  effect of introducing  particulars  if  a  corrupt practice  not  previously   alleged  in     the  petition." One alleges the corrupt  practice in the material facts and they must show a  complete cause of action. If a petitioner has omitted to  allege a corrupt practice, he cannot be permitted to give  particulars of the corrupt practice.  The argument that  the latter part of the fifth sub-section is directory only  cannot stand in view of the contrast in the language of  the  two parts. The first part is enabling and   the  second  part creates  a  positive bar. Therefore, if a corrupt  practice is not alleged, the particulars cannot be  supplied. There  is  however  a difference  of  approach  between the several corrupt  practices.  If for example  the  charge  is bribery of voters and the particulars give  a few  instances, other  instances  can  be added; if the  charge is  use  of vehicles for free carriage of voters, the  particulars of the cars  employed may be amplified.  But  if the charge is that an  agent  did something, it cannot  be amplified  by  giving particulars  of  acts on the part  of the candidate  or vice versa.         In the scheme of  election law     they  are  separate corrupt practices which  cannot be said to grow out  of   the material facts  related to another person.   Publication  of false   statements  by  an  agent is  one  cause of  action,  publication of false statements, by the candidate is quite  a different  cause of action".  

In Raj Narain v. Indira Nehru Gandhi & Anr., (1972) 3 SCC  850, some of the principles had been elaborated which are relevant  and they are as under; "(i)    While a corrupt practice has got to be strictly  proved, it does not follow that a pleading in an  election  proceeding should receive a strict construction.  Even a  defective charge does not vitiate a criminal trial unless it  is proved that the same has prejudiced the accused.  If a  pleading on a reasonable construction could sustain the  action, the court should accept that construction. The  courts are reluctant to frustrate an action on technical  grounds.

(ii)    The charge of corrupt practice in an election  petition is a very serious charge and has to be proved.  It  may or may not be proved.  The allegations may be  ultimately proved or not proved.  But the question for  the courts is whether a petitioner should be refused an  opportunity to prove those allegations merely because  the petition was drafted clumsily. Opportunity to prove  should not be refused.

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

"Material facts" in Section 83 of the Representation  of People Act, 1951 shows that the ground of corrupt  practice and the facts necessary to formulate a  complete cause of action must be stated.  The

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function of the particulars is to present a full picture  of the cause of action so as to make the opposite  party understand the case he has to meet.  Under  Section 86(5) of the Representation of People Act if  the corrupt practice is alleged in the petition the  particulars of such corrupt practice may be amended  or amplified.

(iv)    An election petition is not liable to be  dismissed in limine because full particulars of  corrupt practice alleged were not set out.  If an  objection was taken and the Tribunal was of the view  that full particulars have not been set out, the  petitioner has to be given an opportunity to amend or  amplify the particulars.  It is only in the event of  non-compliance with such order to supply the  particulars, that the charge which remained vague  could be struck down".

The Court stated that rules of pleadings are intended as aids for  a fair trial and for reaching a just decision.  An action at law should  not be equated with a game of chess.  Provisions of law are not mere  formulae to be observed as rituals.  Beneath the words of a provision  of law, generally speaking there lies a juristic principle.  It is the duty  of the Court to ascertain that principle and implement it.

Strong reliance was placed by learned counsel for the  respondent on Hardwari Lal before the High Court as well as before  us.  The High Court also passed the impugned order on the basis of  the said decision.  In Hardwari Lal, an election petition was filed by  the petitioner alleging corrupt practice against the successful  candidate.  The corrupt practice as adopted by the returned candidate  had been set out in paragraph 16 of the petition which read as under-

  "That the respondent committed the corrupt  practice of obtaining and procuring or attempting to  obtain and procure the assistance for the furtherance  of the prospects of his election from the following  persons who are in the service of the Government  and belong to the prohibited classes within the  meaning of Section 123 (7) of the Act:

       1. Shri Chand Ram Rathi, Lecturer in Political              Science, Government College, Gurgaon.         2. Shri Gulab Singh, B.A., B.Ed., Government               High Court (School) Jaharsa (Gurgaon).         3. Pt. Bhim Singh, Assistant Sub-Inspector,                Police Security Lines, Lyton Road, New Delhi.         4. Ch. Chhattar Singh, M.A., B.T. Teacher V and                P.O. Bharai via Bahadurgarh, District Rohtak.         5. Ch. Mukhtiar Singh, Inspector of Police, Delhi.         6.  Ch. Raghbir Singh, M.A., B.T., Chandigarh.

       The respondent has written letters under his own  signatures to the above Government servants soliciting  their help and assistance in furtherance of the  prospects of his election."     (emphasis supplied)

  A preliminary objection was raised by the returned candidate  that paragraph 16 did not give necessary particulars about the nature  of assistance, the place and date where and when such assistance was  sought or received from the persons named in the petition. Upholding the preliminary objection and reproducing sub-

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section (7) of Section 123 of the Act, the Court stated that   ’obtaining’, ’procuring’, abetting’, or ’attempting to obtain or  procure’ assistance are different forms of corrupt practice.  The Court  stated;  "It has to be noticed that the different expressions  obtaining, procuring, abetting or attempting to obtain or  procure are various forms of corrupt practices. It has to  be found as to whether the allegation of obtaining  assistance amounted to an allegation of fact. It is well  settled that general expression like ’fraudulently’,  ’negligently’ or ’maliciously’ in pleadings do not  amount to any allegation of fact. A fact is after all not a  mere word". (emphasis supplied)

According to the Court, the provisions of the section indicate  various heads of corrupt practice, such as, obtaining by a candidate or  his agent or by any other person, any assistance, or procuring such  assistance or abetting of such assistance or attempting to obtain or  procure such assistance.  The material facts, therefore, were required  to be alleged as to whether the candidate obtained or procured or  abetted or attempted to obtain or procure such assistance.  

The Court stated;  "Reading Paragraph 16 of the election petition one  will search in vain to find out as to whether the  allegations against the appellant are in regard to the  assistance under both heads or either head from each of  the six persons mentioned there.  One will speculate as  to whether the appellant obtained and procured or  attempted to obtain and procure assistance from each or  some of the persons mentioned there. Obtaining or  procuring or attempting to obtain or procure assistance  are separate and independent forms of corrupt practice.   One will guess as to whether the allegations are that the  appellant committed all or one or more of the corrupt  practices of obtaining, procuring, attempting to obtain or  procure assistance from each of the persons mentioned  there.  One will also conjecture and hazard as to what  assistance was obtained or procured or attempted to  obtain or procure from each of the persons mentioned  there, for the furtherance of the prospects of that  candidate’s election."  (emphasis supplied)

Merely alleging that the respondent obtained or procured or  attempted to obtain or procure assistance are extracting words from  the statute and it will have no meaning unless and until facts are  stated to show what that assistance was and how the prospect of  election was furthered by such assistance. According to the Court,  material facts are facts which if established would give the petitioner  the relief asked for.  If the respondent had not appeared could the  Court have given a verdict in favour of the election petitioner?  In the  opinion of the Court, the answer was in the negative because the  allegations in the petition did not disclose any cause of action. Reference was made to another leading decision of this Court  in Udhav Singh v. Madhav Rao Scindia, (1976) 2 SCR 246 : (1977) 1  SCC 511.  As we have already seen above, both the Code and the Act  employ the expression ’material facts’. Whereas Rule 2 of Order VI  of the Code uses the term ’particulars’, clause (b) of sub-section (1)  of Section 83 of the Act uses the phrase ’full particulars’.  But,  neither the Code nor the Act employs the expression ’material  particulars’. Though the phrase ’material particulars’ had been used  by this Court in some cases [see Pratap Singh v. Rajinder Singh &  Anr.; (1975) 1 SCC 535 : AIR 1975 SC 1045; D. Venkata Reddy v. R.  Sultan & Ors.; (1976) 2 SCC 455 : AIR 1976 SC 1599], probably for  the first time, distinction was sought to be made between the two in

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Udhav Singh. Considering the ambit and scope of Section 83 of the Act in  Udhav Singh, the Court stated; "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 O.6, R.2, while clause (b) 257 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  struck 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  a 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.  

All the primary facts which must be proved at the  trial by a  party to    establish the existence of a cause of  action nor his defence, are  "material facts".   In the  context of a charge of  corrupt practice, "material facts"  would mean all the  basic   facts  constituting   the  ingredients of the particular corrupt practice alleged,  which the petitioner is bound to  substantiate before he  can succeed on that charge. Whether in  an election- petition,  a    particular  fact  is material or  not, and  as  such    required to  be pleaded is a question which  depends on the nature of the charge levelled, the ground   relied upon and the special circumstances of the case. In   short, all  those facts  which  are  essential  to clothe the   petitioner with  a complete cause of action, are "material  facts"  which must be pleaded and failure to plead even  a single material fact amounts to disobedience of the  mandate of sec. 83(1) (a).

"Particulars", on the other hand, are "the details  of the case set up by the party". "Material particulars"  within the contemplation of clause (b) of s. 83(i) would  therefore mean all the details which are necessary to  amplify, refine and embellish the material facts already  pleaded in       the petition in compliance with the  requirements of clause (a). ’Particulars’ serve the  purpose of finishing touches to the basic contours of a  picture already drawn, to make it full, more detailed and  more informative."     The Court observed that the distinction between ’material  facts’ and ’material particulars’ was pointed out by the Court in  several cases including Hardwari Lal.  We have gone through those  cases and in none of those cases, the distinction was drawn between  ’material facts’ and ’material particulars’.  What had been done by  this Court was drawing of distinction between ’material facts’ and  ’particulars’ or ’full particulars’. In  K.M. Mani v. P.J. Antony & Ors., (1979) 2 SCC 221, this  Court indicated that while alleging corrupt practice in an election  petition, substance of the allegation alone is material.  The allegations  must be read as a whole.  Precise material or contemporaneous record  of the averments regarding allegations should be produced.  But,

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when it comes to proof, since commission of corrupt practice at an  election is a very serious matter not only for the candidate but also for  the public at large as it relates to the purity of electoral process and is  in the nature of quasi-criminal proceedings, it must be established  beyond reasonable doubt and not merely by preponderance of  probabilities. In Azhar Hussain v. Rajiv Gandhi, 1986 Supp SCC 315 : AIR  1986 SC 1253, it was observed that the law as to corrupt practice is  well settled.  In the context of a charge of corrupt practice, it would  mean that the basic facts which constitute the ingredients of a corrupt  practice alleged by the petitioner must be specific 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. Failure to plead even a single  material fact would amount to non-compliance with the mandate of  Section 83(1)(a) of the Act and the election petition is liable to be  dismissed. The Court, however, drew the distinction between ’material  facts’ and ’particulars’.  According to the Court, ’material facts’ are  facts, if established would give the petitioner the relief prayed for.   The test is whether the Court could have given a direct verdict in  favour of the election petitioner in case the returned candidate had not  appeared to oppose the election petition on the basis of the facts  pleaded in the petition.   In S.A. Sapa & Ors. etc. v. Singora & Ors. etc., (1991) 3 SCC  375, this Court held that Section 83(1)(a) stipulates that every  election petition shall contain a concise statement of material facts on  which the petitioner relies.  It means that entire bundle of facts which  would constitute a complete cause of action must be concisely stated  in the petition.  Clause (b) of the said section then requires an election  petitioner to set forth ’full particulars’ of any corrupt practice alleged  against a returned candidate.  According to the Court, those  particulars are obviously different from the ’material facts’ on which  the petition is founded and are intended to afford to the returned  candidate an adequate opportunity to effectively meet with such an  allegation.  The underlying idea in requiring the election petitioner to  set out in a concise manner all the ’material facts’ as well as ’full  particulars’, where commission of corrupt practice is complained of,  is to delineate the scope, ambit and limits of the inquiry at the trial of  the election petition. The Court also observed that the power of amendment granted  by Section 86(5) of the Act is relatable to clause (b) of Section 83(1)  and is coupled with a prohibition, namely, that the amendment will  not relate to a corrupt practice not already pleaded in the election  petition.  The power is not referable to clause (a) of Section 83(1) as  the plain language of Section 86(5) confines itself to the amendments  of ’particulars’ of any corrupt practice alleged in the petition and does  not extend to ’material facts’.  It is clear from the trinity of clauses (a)  and (b) of Section 83 and sub-section (5) of Section 86 that there is  distinction between ’material facts’ referred to in clause (a) of Section  83 and ’particulars’ referred to in clause (b) of the said section and  sub-section (5) of Section 86 applies to the latter and not to the  former. In Gajanan Krishnaji Bapat & Anr. v. Dattaji Raghobaji  Meghe & Ors., (1995) 5 SCC 347, the Court stated that Section 83  provides that the election petition must contain a concise statement of  material facts on which the petitioner relies.  He must also set forth  full particulars of the corrupt practice including as full a statement as  possible of the name of the parties alleged to have committed such  corrupt practice and the date and place of the commission of each of  such corrupt practice. The section has been held to be mandatory  which requires first a concise statement of material facts and then full  particulars of the corrupt practice, so as to present a full picture of the

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cause of action. In L.R. Shivaramagowda, etc. v. T.M. Chandrashekar etc.,  (1999) 1 SCC 666 : JT 1998 (8) SC 278, referring to Udhav Singh,  the Court used two expressions, ’material facts’ and ’material  particulars’ and held that while 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 is over, absence of material  particulars can be cured at a later stage by an appropriate amendment. In V.S. Achuthanandan v. P.J. Francis & Anr., (1999) 3 SCC  737, referring to Udhav Singh, the Court drew the distinction between  ’material facts’ and ’material particulars’.  It was observed that  material facts are preliminary facts disclosing cause of action and  they have to be specifically pleaded.  Failure to do so would result in  rejection of the election petition.  Defect in material particulars,  however, can be cured at a later stage by amendment and the petition  cannot be dismissed in limine on the ground of such defect. In V. Narayanaswamy v. C.P. Thirunavukkarasu, (2000) 2  SCC 294 : JT 2000 (1) SC 194, again the Court discussed two  phrases ’material facts’ and ’material particulars’.  Drawing the  distinction between the two, the Court held that while failure to plead  material facts was fatal to the petition, absence of material particulars  could be cured subsequently. In Hari Shanker Jain v. Sonia Gandhi, (2001) 8 SCC 233,  referring to S.N. Balakrishna, the Court held that quoting the words  of the section like chanting of a mantra does not amount to stating  material facts.  Material facts would include positive statement of  facts as also positive averment of a negative fact, if necessary.   Failure to plead ’material facts’ is fatal to the election petition and no  amendment of the pleadings is permissible to introduce such material  facts after the time-limit prescribed for filing the election petition.   The Court also stated that it is the duty of the court to examine the  petition irrespective of any written statement or denial and reject the  petition if it does not disclose a cause of action.  To enable a court to  reject a plaint on the ground that it does not disclose a cause of  action, it should look at the plaint and nothing else. In Santosh Yadav v. Narender Singh, (2002) 1 SCC 160, the  Court stated that an election petition must set out all material facts  wherefrom inferences vital to the success of the election petitioner  and enabling the court to grant the relief prayed for by the petitioner  can be drawn subject to the averments being substantiated by cogent  evidence.  Concise and specific pleadings setting out all material facts  and then cogent affirmative evidence being adduced in support of  such averments, are indispensable to the success of an election  petition.  An election petition, if allowed, results in avoiding an  election and nullifying the success of a returned candidate.  It is a  serious step and, therefore, an election petition seeking relief on the  ground of corrupt practice must precisely allege all material facts on  which the petitioner relies in support of the plea. In Mahadeorao Sukaji Shivankar v. Ramaratan Bapu &  Others, (2004) 7 SCC 181, dealing with ’material facts’ and  ’particulars’, one of us (Thakker, J.) stated;         "Now, it is no doubt true that all material facts have  to be set out in an election petition.  If material facts  are not stated in a plaint or a petition, the same is  liable to be dismissed on that ground alone as the case  would be covered by Clause (a) of Rule 11 of  Order  VII of the Code.    The question, however, is as to  whether the petitioner had set out material facts in the  election petition.  The expression "material facts" has  neither been defined in the Act nor in the Code.  It  may be stated that the material facts are 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 defendant’s defence

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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 existence of cause of action or  defence are material facts and must be stated in the  pleading of the party.          But, it is equally well settled that there is  distinction between "material facts" and "particulars".   Material facts are primary or basic facts which must be  pleaded by the party 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 finishing  touch to the basic contours of a picture already drawn  so as to make it full, more clear and more informative.   Particulars ensure conduct of fair trial and would not  take the opposite party by surprise."   

As we have already observed earlier, in the present case,  ’material facts’ of corrupt practice said to have been adopted by the  respondent had been set out in the petition with full particulars.  It has  been expressly stated as to how Mr. Chahal who was a Gazetted  Officer of Class I in the Government of Punjab assisted the  respondent by doing several acts, as to complaints made against him  by authorities and taking of disciplinary action.  It has also been  stated as to how a Police Officer, Mr. Mehra, who was holding the  post of Superintendent of Police helped the respondent by organizing  a meeting and by distributing posters.  It was also alleged that correct  and proper accounts of election expenses have not been maintained  by the respondent.  Though at the time of hearing of the appeal, the  allegation as to projecting himself as ’Maharaja of Patiala’ by the  respondent had not been pressed by the learned counsel for the  appellant, full particulars had been set out in the election petition in  respect of other allegations. The High Court, in our opinion, was  wholly unjustified in entering into the correctness or otherwise of  facts stated and allegations made in the election petition and in  rejecting the petition holding that it did not state material facts and  thus did not disclose a cause of action.  The High Court, in our  considered view, stepped into prohibited area of appreciating the  evidence and by entering into 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.   We, therefore, hold that the High Court was wrong in  dismissing the election petition on the ground that material facts had  not been set out in the election petition and the election petition did  not disclose a cause of action.  The order passed by the High Court,  therefore, deserves to be quashed and set aside. For the foregoing reasons, the appeal deserves to be allowed  and is, accordingly, allowed.  The order passed by the High Court is  set aside.  The Election Petition No. 26 of 2002 is restored to file, and  is remitted to the High Court to decide the same on merits.  Since the  election took place in the beginning of 2002 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.  In the facts and circumstances of the  case, however, there shall be no order as to costs.