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PETITIONER: ROOP LAL SATHI

       Vs.

RESPONDENT: NACHHATTAR SINGH

DATE OF JUDGMENT02/11/1982

BENCH: SEN, A.P. (J) BENCH: SEN, A.P. (J) DESAI, D.A.

CITATION:  1982 AIR 1559            1983 SCR  (1) 702  1982 SCC  (3) 487        1982 SCALE  (2)976  CITATOR INFO :  RF         1986 SC  11  (15)  RF         1990 SC  19  (24)

ACT:      Election  Symbols  (Reservation  and  Allotment)  Order 1968-Order made  under Representation  of  the  People  Act, 1951.      Representation  of   the  People   Act,  1951-Trial  of election  petition-Provisions   of  O.  VI,  Code  of  Civil Procedure, 1908  applicable except as modified by sub-s. (5) of s.86.      Representation of  the People Act, 1951-Cl. (a) of sub- s. (1)  of s.  83-Trial  of  election  petition-Omission  of ’material facts’ renders whole petition bad under O. VII, r. 11 (a),  Code of  Civil Procedure,  1908-Court cannot strike down portions only.      Representation of the People Act, 1951-Cl.(b) of sub-s. (1)  of   s.  83-Trial   of  election  petition-Omission  of ’particulars’-Court   may   direct   ’further   and   better particulars’ under  O. Vl,  r. 5,  Code of  Civil Procedure, 1908.

HEADNOTE:      For a  candidate to  be  deemed  to  be  set  up  by  a political party  under paragraph  13 of the Election Symbols (Reservation and Allotment) Order 1968, it is essential that a notice  in writing  to that  effect  signed  by  the  duly authorised office-bearer of the political party is delivered to the  returning officer of the constituency not later than 3 p.m.  on the  last day  of withdrawal of candidatures. The allotment of  any symbol  to a  candidate by  the  returning officer is final under sub-r. (5) of r. 10 of the Conduct of Elections Rules,  1961 except  where it is inconsistent with any directions  issued by  the Election  Commission in  that behalf.      The appellant,  the respondent  and one  Jagmohan Singh contested the  election to  the Punjab  Legislative Assembly from the  same constituency  and the respondent was declared elected.  The  appellant  challenged  the  election  of  the respondent under s. 100(1)(d)(iv) read with s. 123(7) of the Representation of  the People  Act, 1951. Paragraphs 4 to 18 of the petition related to change of symbols allotted to the

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candidates. It  was averred  therein that  the last  day for withdrawal of  nomination papers  was May  5, 1980;  that  a notice in  writing signed by the authorised office-bearer of the Indian National Congress (I) to the effect that Jagmohan Singh was contesting as the candidate of that party 703 had been  delivered to  the Returning  Officer on  that day; that the  Returning    Officer had on May 8, 1980, intimated by a  letter  that  on  receipt  of  instructions  from  the Election Commission  a  change  had  been  effected  in  the symbols allotted  to the  candidates according  to which the symbol ’hand’  reserved for the Indian National Congress (I) had been  allotted to  the  respondent;  that  in  terms  of paragraph 13  of the  Symbols Order  Jagmohan Singh ought to have been  deemed to  be the  candidate set up by the Indian National Congress  (I); that  the Election Commission had no power to  direct re-allotment of the symbol once allotted to a candidate  under sub-r.  (4) of  r. 10  and therefore  the action of  the Returning  Officer in recalling the allotment of the  symbol ’hand’  to Jagmohan Singh was in violation of the Act  and  the  rules  made  thereunder.  The  respondent contested these  averments  in  his  written  statement  and referred  to   the  circumstances   in  which  the  Election Commission had issued the instructions relating to change of symbols.      The respondent  raised a preliminary objection that the averments in  paragraphs 4  to 18  of the  petition did  not disclose any  cause of  action and the High Court, accepting the objection, ordered deletion of those paragraphs from the petition. The  High Court  held that it was incumbent on the appellant  to  find  out  the  circumstances  in  which  the Election Commission  had passed the order relating to change of symbols  and  that  in  the  absence  of  those  material circumstances non-compliance  with r.  10(5) or Paragraph 13 of the  Symbols Order  could not  be spelled  out. The  High Court further  held that  the Symbols Order was not an order made under  the Act  and therefore  s. 100(1)(d)(iv) was not attracted.      In  appeal,   counsel  for   appellant  contended  that paragraphs 4  to  18  of  the  petition  contained  all  the material facts  necessary to show that the change of symbols was in  breach of  r. 10(5)  and paragraph 13 of the Symbols Order and the High Court was not justified in ordering their deletion.      Counsel for  respondent contended  that paragraphs 4 to 18 of  the petition  did not disclose any cause of action as there was  non-disclosure of facts necessary to show how the order of  the Election Commission was illegal, that the High Court was  justified in  striking out those paragraphs under O. Vl,  r. 16 of the Code of Civil Procedure, 1908 as it had no power  to direct  further and better particulars under O. Vl, r.  5. Laying  emphasis on  the words  "under  the  Act" occurring in  s. 100(1)(d)(iv) he contended that the Symbols Order was not an Order made under the Act.      Allowing the appeal, ^      HELD:  Cl.   (a)  of   sub-s.(1)  of   s.  83   of  the Representation of  the People  Act,  1951  enjoins  that  an election petition  shall contain  a concise statement of the material facts on which the election petitioner relies. This clause is  based on  the provisions of O. VI, r. 2(1) of the Code of  Civil Procedure,  1908 from  which it is clear that the statement  of material  facts ought  not to  contain the evidence by  which they are proved. Cl. (b) of sub-s. (1) of s. 83 states that an

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704 election petitioner  must set  forth full particulars of any corrupt practice  on which he challenges the election of the returned candidate.  This clause  is based  on O VI, r. 4 of the Code  and the High Court has ample power while trying an election petition  to direct  further and better particulars as to  the nature  of the  claim or defence under O.VI, r.5. The word ’material’ in cl. (a) means facts necessary for the purpose of  formulating a  complete cause  of action; and if any one material fact is omitted, the statement or plaint is bad; it  is  liable  to  be  struck  out.  The  function  of ’particulars’ in  cl. (b)  is quite  different; the  use  of particulars is intended to meet a further and quite separate requirement of  pleading imposed  in fairness and justice to the returned  candidate. The function of ’particulars’ is to fill in  the picture  of the  election-petitioner’s cause of action with  information sufficiently  detailed to  put  the returned candidate  on his  guard as  to the  case he has to meet and  to enable him to prepare for trial in a case where his election  is challenged  on the  ground of  any  corrupt practice. Under  O.VI, r.5. ’particulars’ will be ordered of the ’material  facts’ on which the party pleading relies for his claim  or defence. If a party’s pleading is defective he can also  seek leave  to alter  and amend  his own defective pleading  under   O.VI,  r.17.  There  is  no  express  rule providing for  the consequence of a party failing to deliver ’particulars’  required  by  order  of  the  Court  but  the decisions are to the effect that either by the order calling for particulars or by a later order the court can direct the claim or  defence to  be struck out under O.VI, r.16. [724B; 723 H; 724 C-F; 726 C-E; 724 G-H; 725 A]      In the  instant case  the question  whether  the  order passed by the High Court could be justified under O.VI, r.16 would depend  upon whether  or not the election petition was in conformity  with the  requirements of s.83. A preliminary objection that  the election  petition does  not  contain  a concise statement  of material facts on which the petitioner relies is  but a  plea in  the nature  of  demurrer  and  in deciding the  question the  court had  to  assume  for  this purpose that  the averments  contained in  the petition were true. Although  the High  Court observed  that a question of this nature  had to  be decided  on a  consideration of  the averments in  the election  petition alone, it later on made certain observations which tend to show that the allegations in the written statement of the respondent were very much in its mind.  It is  no part  of the  statement of an election- petitioner to  anticipate the  defence and  to state what he would have  to say  in answer  to it. The High Court cast on the appellant  the burden of disclosing facts not within his knowledge. This approach was unwarranted. The High Court was not justified in directing that the averments in paragraphs, 4 to  18 of the petition be deleted on the ground that there was non-disclosure of material facts sufficient to give rise to a cause of action under s. 100(1)(d)(iv). It is not clear from the order whether the High Court proceeded to act under O.VII, r.  1 1  (a) or under O.VII, r. 16. It could not have acted under  O. VII, r. 1 1 (a) as, under that rule, when it is found that the plaint discloses no cause of action, it is obligatory to  reject the  plaint as  a whole  and  not  any particular portion  thereof. The  High Court’s  Order cannot also be  sustained under  O.VI, r.16  because there  was  no finding that the averments in paragraphs 4 to 18 were either unnecessary, frivolous  or vexatious,  or were  such as  may tend to  prejudice, embarrass or delay the fair trial of the election, or  were such  as to  constitute an  abuse of  the

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process of the court. [723C; 721H; 722 A-B; 724 B; 721C; 719                                           G-H; 720 A-B; E-E] 705      Bruce v. Odhams Press Ltd. [1936] 1 K.D. 697 and Samant N. Balakrishan  v. George  Fernandez & Ors., [1969] 3 S.C.R. 603, referred to.      (b) The  contention that the High Court had no power to direct further and better particulars under O.VI, r.5 cannot be accepted.  Sub-s. (1) of s.87 enacts that the trial of an election  petition  shall  be,  as  nearly  as  may  be,  in accordance with  the procedure  applicable under the Code of Civil Procedure,  1908 to the trial of suits, subject to the provisions of  the Act  and of  any rules  made  thereunder. There are  no express  provisions in the Act or in the rules made thereunder  to deal  with  a  situation  like  the  one presented in  the instant  case. The  provisions of the Code accordingly must  apply in  such a  case as provided by sub- s.(1) of  s 87.  That being so, the provisions of O.VI which are integral  part of  the Code come into play except to the extent modified by sub-s. (5) of s. 86. [727 A-B; 726 E-G]      Hari Vishnu Kamath v. The Election Tribunal & Anr., AIR [1958] M.P. 168; distinguished.      Bhikaji Keshao  Joshi & Anr. v. Brijlal Nandlal Joshi & Ors., [1955] 2 S.C.R. 18. referred to.      2. The  High Court  was in  error in  holding that  the Election Symbols (Reservation and Allotment) Order, 1968 was not an  order made  under the  Representation of  the People Act, 1951.  The Act  is a  law made by Parliament under Art. 327 of  the Constitution to provide for conduct of elections and the Conduct of Elections Rules, 1961 are rules framed by the Central Government under s. 169 in consultation with the Election Commission  for  regulating  the  mode  of  holding elections.  Rule  5  requires  the  Election  Commission  to specify the symbols that may be chosen by candidates and the restrictions to  which their choice shall be subjected. Rule 10  provides   for  allotment   of  symbols   to  contesting candidates by  the returning  officer subject to any general or special  directions issued in that behalf by the Election Commission. By  virtue of  Art. 324  of the Constitution the authority to  conduct all  elections to Parliament and State Legislatures is  vested  in  the  Election  Commission.  The Symbols Order  has been issued by the Election Commission in exercise of its powers under Art. 324 read with s. 5 and 10. The primary  object of  the Symbol  Order is  to provide for specification, reservation,  choice and allotment of symbols at elections  in parliamentary  and assembly constituencies. It is  a matter  of common  knowledge that  elections in our country are  fought on  the basis  of symbols.  It must  but logically follow  as a  necessary corollary that the Symbols Order is  an order  made under the Act. Any other view would be destructive  of the  very fabric of our system of holding parliamentary and  assembly constituency  elections  in  the country on the basis of adult suffrage. [718 B; 712 G; 713                                  B-C; 713 H; 714 A; 719 D-F]      Sadiq Ali  & Anr.  v. Election  Commission of  India  & Ors., [1972] 2 S.C.R. 318, referred to. 706

JUDGMENT:      CIVIL APPELLATE  JURISDICTION  Civil  Appeal  No.  1106 (NCE) of 1981.      From the  Judgment and  Order dated  the 22nd February, 1981 of the Punjab & Haryana High Court in Election Petition

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No. 3 of 1980.      D.V.  Patel,  A.S.  Sohal  and  M.C.  Dhingra  for  the Appellant.      P.R. Mridul and R.S. Sodhi for the Respondent.      The Judgment of the Court was delivered by      SEN, J. This appeal by special leave is from a judgment and order  of the Punjab & Haryana High Court dated February 2, 1981  by which it has directed the deletion of paragraphs 4 to  18 of  the election  petition filed  by the  appellant under s.  81 read  with s.  100 of the Representation of the People Act,  1951 (’Act’  for short) calling in question the election of  the respondent  Nachhattar Singh  Gill  to  the State Legislative  Assembly of Punjab from the Moga Assembly Constituency No.  99  on  the  ground  that  there  is  non- disclosure of  material facts  on which  he alleges that the change of  allotment of  symbols by  the Returning  Officer, Moga amounted  to non-compliance  with the provisions of the Constitution, or  of the  Act, or  any rules  or orders made thereunder so that the result of the election, insofar as it concerns the  respondent i.e.  the  returned  candidate,  is materially affected.      At the  last general elections to the State Legislative Assembly of  Punjab from  Moga Assembly  Constituency No. 99 the appellant contested as a candidate of the Lok Dal Party. The last  date  for  withdrawal  of  nomination  papers  was notified as  May 5,  1980. It  appears that on that day Shri Darbara Singh,  President of the Punjab Pradesh Congress (I) Committee, intimated  the Returning  Officer  that  Jagmohan Singh had  been nominated  as the  official candidate of the Indian National  Congress (I) to contest the election. There is also  on record  a letter  dated May 5, 1980 addressed by Shri Darbara  Singh, President,  Punjab Pradesh Congress (I) Committee, to the respondent stating that Jagmohan Singh had been finally  selected as  the  official  candidate  of  the Indian National  Congress  (I)  from  the  99-Moga  Assembly Constituency in  his place,  and he  was advised to withdraw his nomination paper. 707      It  appears  that  the  Indian  National  Congress  (I) changed its  official candidate  and  finally  selected  the respondent  Nachhattar   Singh  Gill   to  be  the  official candidate of  its party.  On  May  7,  1980,  the  Returning Officer, Moga  Vidhan Sabha  Assembly Constituency  wrote  a letter to  Jagmohan Singh  stating that he had been directed by the  Secretary, Election Commission of India, by means of a police radio message that the respondent was to be treated as the finally selected candidate, and that party’s reserved symbol ’hand’  be allotted  to him.  On  May  8,  1980,  the Returning Officer,  Moga Vidhan Sabha Assembly Constituency, addressed a  letter to  all  the  candidates  regarding  the change in the allotment of election symbols to the effect:           "According to  the  instructions  from  the  Chief      Election Commissioner of India, certain change has been      effected in  the election  symbols of the candidates of      the  election   to  the  99-Moga  Legislative  Assembly      Constituency which is as under:      S.No.   Name of the Candidate           Symbol Allotted      1.      Shri Nachhattar Singh                ’HAND’      2.      Shri Jagmohan Singh              "BOW & ARROW"      Accordingly,  the   necessary  change  of  symbols  was effected in  Form 7A, the list of contesting candidates. The respondent fought the election on the reserved symbol of the Indian National  Congress  (I)  ’hand’  and  secured  22,460 votes. As  against this,  the appellant, who was a candidate of the  Lok  Dal  party,  secured  16,686  votes  while  the

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aforesaid Jagmohan Singh as an Independent candidate got 242 votes.  The   appellant  was   therefore  defeated   by  the respondent by  a margin  of 5,774 votes. The appellant filed an  election   petition  challenging  the  election  of  the respondent under s. 100 (1) (d) (iv) read with s. 123 (7) of the Act.  The averments in paragraphs 4 to 18 related to the change of  symbols allotted  to the  respondent viz.  ’hand’ instead of ’bow & arrow’ allotted to Jagmohan Singh.      Upon these  facts, it  is averred  in paragraph 12 that Jagmohan Singh  alone be  deemed to be set up as a candidate by the  Indian National  Congress (I)  within the meaning of paragraph  13   of  the   Election  Symbols  (Reservation  & Allotment) Order,  1968 and not the respondent, and that the candidates could withdraw their 708 nomination papers  under s.  37 (1)  before 3 p.m. on May 5, 1980 which was notified by the Election Commission to be the last date for withdrawal of candidatures under s. 30 (c) and thereafter the  Returning Officer  was enjoined  under s. 38 (1) to  publish in  the prescribed  Form 7A  the  names  and addresses of  the contesting  candidates together  with  the symbols allotted  to them.  It is  then averred in paragraph 14:           "On a  perusal of  para 18 of the Symbols Order it      is clear  that the  Election Commission has no power to      issue instructions  and  directions  to  the  Returning      Officer of  an Assembly  Constituency to  re-allot  the      symbol once  allotted to  a contesting  candidate under      sub-rule (4)  of rule  10 of  the Conduct  of Elections      Rules and  to allot  the symbol reserved for a National      Party who has allotted the symbol to a candidate deemed      to be  set up  by that political party under para 13 of      the  Symbols  Order  to  any  other  person  after  the      publication of the list of the contesting candidates in      Form 7A."      In paragraph  15 after  stating that Jagmohan Singh had delivered to  the Returning  Officer a  notice in writing as provided for under paragraph 13 (b) from Shri Darbara Singh, President, Punjab  Pradesh Congress  (I) Committee,  who was duly authorized by the Indian National Congress (I) to issue such authorization  as envisaged under paragraph 13 (c), the appellant avers  that the action of the Returning Officer in recalling on  May 8, 1980 the allotment of the symbol ’hand’ to Jagmohan  Singh on  May 5, 1980 and allotting the same to the respondent,  was in  violation of  the provisions of the Act and  the rules  made thereunder,  and the  result of the election, insofar as it concerns the returned candidate i.e. the respondent,  has been  materially affected  inasmuch  as because of  the change of symbol Jagmohan Singh got only 242 votes while  the respondent could not have secured more than the same  number if  he had  contested on  the symbol ’bow & arrow’ earlier  allotted to  him. If  the respondent had not been allotted  the reserved  symbol  ’hand’  of  the  Indian National Congress  (I), he  could not have won the election. In paragraphs  16, 17  and 18,  the appellant  set out  some facts showing  how the result of the election, insofar as it concerns the respondent, has been materially affected by the change of allotment of symbols. 709      The respondent  filed a written statement controverting the allegation  that there  was a  breach of paragraph 13 of the Symbols Order by the change of allotment of symbols made by the Returning Officer in accordance with the instructions issued by  the Election  Commission. It  was pleaded,  inter alia, that  the respondent  had made  a declaration  in  the

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nomination paper  filed by  him on May 2, 1980 to the effect that he  had been  selected as  a candidate  of  the  Indian National Congress  (I); and  that he  had  on  May  5,  1980 furnished a  notice to  the  Returning  Officer  signed  and issued by  Shri Darbara  Singh,  President,  Punjab  Pradesh Congress (I)  Committee, in pursuance of paragraph 13 (b) of the Symbols  Order. It was alleged that after the respondent had been  adopted as  a candidate  by  the  Indian  National Congress (I),  Jagmohan Singh  made an  effort to  get  that party’s ticket  for the seat and produced a letter from Shri Darbara Singh dated May 5, 1980 before the Returning Officer showing that  he was  the official  candidate of  the Indian National Congress  (I). When  the respondent  learnt of this move on  the part of Jagmohan Singh, he met the President of the Indian National Congress (I) at New Delhi on the morning of May  5, 1980  and apprised  her of  the situation and was informed that  he had  been finally  selected as  the  party candidate and there was no question of a change.      It is  further averred that a communication was sent by Shri Buta  Singh on  May  5,  1980  to  the  Chief  Election Officer, Punjab,  Chandigarh and  the Returning Officer, 99- Moga Assembly  Constituency, in  supersession of all earlier communications with  regard to  the  Assembly  Constituency, stating that  the respondent  was the  official candidate of the Indian National Congress (I) and that the party’s symbol ’hand’ be  allotted to him. A letter to this effect was also delivered by  Smt. G.  Brar, Member  of  Parliament  to  the Election  Commission   on  the   morning  of  May  5,  1980. Thereafter,  Shri   Ganesan,  Secretary   to  the   Election Commission, got  in touch  with the Chief Electoral Officer, Chandigarh and  informed him  that the  respondent  was  the official candidate  of the  Indian  National  Congress  (I). There was  a mention  of this talk in the telex message sent by the  Secretary to  the Returning Officer, Moga, with copy to the Chief Electoral Officer, Punjab on May 5, 1980.      A preliminary  objection was  raised on  behalf of  the respondent that  the averments in paragraphs 4 to 18 as well as paragraphs 19A 710 and 20, with which we are not concerned, do not disclose any cause of  action and therefore they are liable to be deleted under Order  VII, r.  11 (a) of the Code of Civil Procedure. The High Court accordingly framed a preliminary issue to the effect :           "Whether paragraphs  4 to 18, 19 (a) and 20 of the      election  petition  have  to  be  deleted  because  the      averments made  therein do  not make  out any  case for      setting aside  the election  under s.  100 (1) (d) (iv)      and s.  123 (7)  of the  Representation of  the  People      Act."      By the  judgment under appeal, the High Court sustained the preliminary objection and directed that the averments in paragraphs 4 to 18 be struck out from the election petition. In dealing  with the  question, the High Court observed that the preliminary issue had to be decided upon a consideration of the pleas in the election petition and nothing averred in the written statement could be taken into account.      On a  consideration of the averments in paragraphs 4 to 18  the   High  Court   felt  that   the  use  of  the  word "instructions" in  Annexure P-I, the letter addressed by the Returning Officer, Moga Assembly Constituency on May 8, 1980 to all  the candidates  intimating about  the change  in the allotment of  election symbol to the respondent, cannot lead to an  inference of their being issued under paragraph 18 of the Symbols Order. It then observes :

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         "The petitioner  has not  at all  disclosed in the      election petition  as to  what was exactly the order of      the Election  Commission  behind  the  instructions  in      Annexure P-I, and how it was in contravention of any of      the provisions  of the  Act, or  rule,  or  order  made      thereunder."      It was  urged on  behalf of  the respondent that before filing  the  election  petition  it  was  incumbent  on  the appellant to  find out the entire circumstances in which the Election Commission  passed the  order as  to the  change of symbols  and   consequently  issued   instructions  to   the Returning Officer  in that  behalf. The  High Court accepted the contention and observed that "in the absence of material circumstances, non-compliance  with the  provisions of r. 10 (5) of  the Conduct of Election Rules, 1961, or of paragraph 13 of  the Election Symbols (Reservation & Allotment) Order, 1968 could  not be spelled out," Further, the High Court was of the view that 711 the  Symbols   Order  having   been  made  by  the  Election Commission in  exercise of  the powers under Art. 324 of the Constitution read  with Rs.  5 and  10  of  the  Conduct  of Elections Rules, it cannot be said to be an order made under the Act  and therefore the provisions of s. 100 (1) (d) (iv) of the  Act were  not attracted. Accordingly, the High Court directed that paragraphs 4 to 18 of the election petition be deleted.      It is  argued by learned counsel for the appellant that under sub-s.  (1) of  s. 83 of the Act, an election petition must contain  a concise  statement of  the material facts on which the  election petitioner  relies; the  words "material facts" mean  the facts  necessary to  formulate  a  complete cause of  action. It  is urged  that all  the material facts have been  stated in  the election  petition  to  show  that change of  allotment of symbols by the Returning Officer, in compliance with  the directions  of the Election Commission, was in  breach of  r. 10 (5) and paragraph 13 of the Symbols Order which  gave rise to a cause of action under s. 100 (1) (d) (iv)  of the  Act. According to the learned counsel, the appellant had  disclosed all  the facts within his knowledge and it was no part of his duty to anticipate the defence and plead facts  in relation  thereto. It  is further urged that the High Court was in error in holding that the breach of r. 10 (5),  paragraphs 13  and 18 of the Symbols Order does not constitute  non-compliance   with  any   provisions  of  the Constitution, or  the Act,  or  any  rules  or  orders  made thereunder.      In reply,  learned counsel for the respondent submitted that the  Symbols Order  was not an order made under the Act and therefore  the change  of allotment  of  symbols  was  a matter which fell outside the purview of s. 100 (1) (d) (iv) of the  Act, It was urged that there  was no breach of r. 10 (5) of  the Conduct  of Elections  Rules or of paragraphs 13 and 18  of the  Symbols Order inasmuch as the respondent was the official  candidate set  up by  Indian National Congress (I) and  he had  in the nomination paper filed by him before the Returning  Officer on  May 3, 1980 made a declaration to the effect and had also indicated his choice of that party’s reserved symbol  ’hand’. Our  attention was drawn to certain averments in  the written  statement which tend to show that the respondent  was, in fact, the candidate sponsored by the Indian  National   Congress  (I).  Learned  counsel  made  a grievance that  the appellant  had  deliberately  suppressed this fact  in paragraph 7 of the election petition. Further, he urged  that it was incumbent on the appellant to find out

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the 712 circumstances in  which the  Election Commission  issued the necessary instructions  as to  the change  of symbols  under paragraph 18 of the Symbols order. It was contended that the High  Court   was  therefore   justified  in   striking  out paragraphs 4  to 18  of the  election petition on the ground that they  do not  disclose any  cause of action. Further it was contended  that the   High  Court had  no power to order further and  better particulars  under Order VI, r. 5 of the Code of  Civil Procedure.  In  support  of  the  contention, reliance was  placed on  Hari Vishnu  Kamath v. The Election Tribunal, Jabalpur & Anr. (1)      In this  appeal, two questions arise. First of these is whether any  breach of  paragraph 13  or 18  of the  Symbols Order amounts  to non-compliance  with the provisions of the Constitution, or  the Act, or any rules or orders made under the Act  and therefore the change of allotment of symbols by the Returning  Officer in  compliance with the directions of the Election  Commission was  a matter which fell within the purview of  s. 100  (1) (d)  (iv) of  the Act. The second is whether it  was incumbent on the appellant before filing the election petition  to find  out the  circumstances in which, and the  reasons for  which, the  Election Commission issued necessary instructions  under paragraph  18 of  the  Symbols Order; and  if so,  whether failure  to disclose  such facts amounts  to   non-disclosure  of   material  facts  i.e.  an incomplete cause  of action under s. 100 (1) (d) (iv) of the Act and therefore the averments in paragraphs 4 to 18 of the election petition  were liable  to be struck out under Order VI, r. 16 of the Code of Civil Procedure, 1908.      As to  the  first  question,  there  can  be  no  doubt whatever that  the Symbols  Order is an order made under the Act.   Under    Art.   324    of   the   Constitution,   the superintendence, direction and control of the preparation of the electoral  rolls for,  and the conduct of, all elections to Parliament  and the  Legislature of  every State  and  of elections to  the offices  of President  and  Vice-President held  under   the  Constitution,   vests  in   the  Election Commission. The  Act is  a law made by Parliament under Art. 327 of  the Constitution  to  provide  for  the  conduct  of elections to  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 713 such elections  and the  decision  of  doubts  and  disputes arising out of or in connection with such elections.      Sub-s. (1)  of s.  169 of  the Act  provides  that  the Central  Government   may,  after  consulting  the  Election Commission, by  notification in  the Official  Gazette, make rules for  carrying out  the purposes of the Act. Sub-s. (2) thereof provides  that in  particular, and without prejudice to the  generality of  the foregoing power, the rules framed by the  Central Government  under sub-s.(1)  may provide for all or any of the matters enumerated therein. In exercise of the powers  under s.  169 of the Act, the Central Government made the Conduct of Elections Rules, 1961 for the purpose of regulating the  mode of  holding elections  to the Houses of Parliament  or   to  the   House  or  either  House  of  the Legislature of  every  State.  Rule  5  of  the  Conduct  of Elections Rules  requires the Election Commission to specify the  symbols   that  may   be  chosen   by   candidates   in parliamentary and assembly elections and the restrictions to

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which that choice shall be subject, and it provides:           "5. Symbols  for elections  in  parliamentary  and      assembly  constituencies-(1)  The  Election  Commission      shall, by  notification in  the Gazette of India and in      the Official Gazette of each State, specify the symbols      that may  be  chosen  by  candidates  at  elections  in      parliamentary  or   assembly  constituencies   and  the      restrictions to which their choice shall be subject.           (2) Subject  to any  general or  special direction      issued by the Election Commission either under sub-rule      (4) or  sub-rule (5)  of rule  10, where  at  any  such      election, more nomination papers than one are delivered      by or  on behalf  of a candidate, the declaration as to      symbols made  in the  nomination paper first delivered,      and no  other declaration as to symbols, shall be taken      into  consideration   under  rule   10  even   if  that      nomination paper has been rejected". Rule 10  provides for allotment of symbols to the contesting candidates by  the Returning  Officer subject to any general or special 714 directions issued in that behalf by the Election Commission. It, insofar as relevant, reads as follows:      "10. Preparation of list of contesting candidates:      (1)       xx        xx        xx      (2)       xx        xx        xx      (3)       xx        xx        xx      (4)   At an  election in  a parliamentary  or  assembly           constituency, where  a poll becomes necessary, the           returning officer  shall consider  the  choice  of           symbols expressed  by the contesting candidates in           their nomination  papers and shall, subject to any           general or special direction issued in this behalf           by the Election Commission-           (a)   allot a  different symbol to each contesting                candidate   in    conformity,   as   far   as                practicable, with his choice; and           (b)   if more  contesting candidates than one have                indicated  their   preference  for  the  same                symbol,  decide  by  lot  to  which  of  such                candidates the symbol will be allotted.      (5)   The allotment  by the  returning officer  of  any           symbol to  a candidate shall be final except where           it is  inconsistent with  any directions issued by           the Election  Commission in  this behalf  in which           case  the   Election  Commission  may  revise  the           allotment in such manner as it thinks fit."      The Election  Symbols (Reservation  & Allotment) Order, 1968 was  issued by  the Election  Commission in exercise of its powers  under Art. 324 of the Constitution read with rs. 5 and  10 of  the Conduct  of Elections  Rules, 1961 and all other powers enabling in that behalf. The primary object and purpose of  the Symbols  Order, as  the long  title and  the preamble show, is to provide for specification, reservation, choice  and   allotment   of   symbols   at   elections   in parliamentary   and   assembly   constituencies,   for   the recognition of 715 political  parties  in  relation  thereto  and  for  matters connected there- with. The purpose and object of the Symbols Order as  well as  the source of power under which the Order was issued is brought out in the preamble which reads:           "Whereas  the   superintendence,   direction   and      control of  all elections  to  Parliament  and  to  the      Legislature  of   every  State   are  vested   by   the

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    Constitutution of  India in  the Election Commission of      India.           And, whereas  it is  necessary  and  expedient  to      provide in  the interests  of purity of election to the      House of  the People  and the  Legislative Assembly  of      every State and in the interests of the conduct of such      elections in  a fair  and  efficient  manner,  for  the      specification, reservation,  choice  and  allotment  of      symbols for  the recognition  of political  parties  in      relation thereto and for matters connected therewith.           Now,  therefore,   in  exercise   of  the   powers      conferred by  article 324 of the Constitution read with      rule 5  and rule  10 of the Conduct of Elections Rules,      1961, and  all other powers enabling it in this behalf,      the Election  Commission  of  India  hereby  makes  the      following Order."      It would be apparent from the provisions of the Conduct of  Elections   Rules,  1961   and  the   Election   Symbols (Reservation &  Allotment) Order,  1968 that  when elections are  imminent,   allotment  of  symbols  to  candidates  for elections in  parliamentary and  assembly constituencies  is but an important stage of such elections. The provisions for registration of  political parties  and their recognition as National or State parties by the Commission are only for the purpose  of  allotment,  reservation  and  specification  of symbols at  elections. The  expression, "political party" is defined in  paragraph 2  (h) to mean "an association or body of individuals  of India registered with the Commission as a political party  under paragraph  3 and includes a political party deemed  to be registered with the Commission under the proviso to  sub-para (2)  of that  paragraph."  Paragraph  3 provides   for   registration   with   the   Commission   of associations and  bodies of individuals as political parties for the  purposes of  the Order and paragraph 4 provides for allotment  of   symbols.  Paragraph   5   deals   with   the classification of 716 symbols. According to this paragraph, a ’reserved symbol’ is a symbol reserved for a political party for exclusive use of that party. A symbol other than the reserved symbol has been described by  the said  paragraph to  be  a  ’free  symbol’. Paragraph 6  provides for  the classification  of  political parties. The parties are either recognized political parties or unrecognized  political parties  and  it  lays  down  the conditions necessary  for a political party to be treated as a recognized  political  party.  If  a  political  party  is treated as  a recognized  political party  in four  or  more States in  accordance with  paragraph 6,  it shall  have the status of  a National  party throughout  the whole of India. If, on  the contrary,  a political  party is  treated  as  a recognized political  party in  less than  four  States,  it shall enjoy  the status  of a  State party  in the  State or States in  which it is a recognized political party. We need not dilate  upon this  aspect because  it is  not in dispute that the  Indian National  Congress (I) and Lok Dal are both National  parties.  Paragraph  8  regulates  the  manner  of allotment of  symbols, and  sub-para (I)  and (3)  which are relevant for our purposes read:           "8. Choice  of symbols  by candidates  of National      and State Parties and allotment thereof:      (1)   A candidate  set up  by a  National party  at any           election in any constituency in India shall choose           and shall  be allotted,  the symbol  reserved  for           that party and no other symbol.      (2)       xx        xx        xx

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    (3)   A reserved  symbol shall  not be  chosen  by,  or           allotted to,  any candidate  in  any  constituency           other than  a candidate set up by a National party           for whom  such  symbol  has  been  reserved  or  a           candidate set  up by  a State  party for whom such           symbol has  been reserved in the State in which it           is a State party even if no candidate has been set           up  by  such  National  or  State  party  in  that           constituency." Paragraphs 9  to 12  deal with  certain restrictions  on the allotment of  symbols, concessions  to certain candidates as well as  choice of symbols for some categories of candidates with which  we are  not concerned. Paragraph 13 specifies as to when a candidate shall be 717 deemed to  be set up as a candidate by a political party and reads as under:           "13  When a candidate shall be deemed to be set up      by a  political party-For  the purpose  of this Order a      candidate shall  be deemed  to be set up by a political      party if, and only if,      (a)  the candidate  has  made  a  declaration  to  this           effect in his nomination   paper;      (b)  a notice  in writing to that effect has, not later           than 3  P.M. on  the last  day  of  withdrawal  of           candidatures,  been  delivered  to  the  returning           officer of the constituency; and      (c)  the said  notice is  signed by  the president, the           secretary or  any other office-bearer of the party           and the president, secretary or such other office-           bearer is  authorised by  the party  to send  such           notice and  the name and specimen signature of the           president, the  secretary or  such  other  office-           bearer  are   communicated  in   advance  to   the           returning officer  of the  constituency and to the           Chief Electoral Officer of the State." Paragraph 18 which is important for our purposes is in these terms:           "18. Power of Commission to issue instructions and      directions-The Commission  may issue  instructions  and      directions:      (a)  for the  clarification of any of the provisions of           this Order;      (b)  for the  removal of any difficulty which may arise           in relation  to the  implementation  of  any  such           provisions; and      (c)  in relation  to any  matter with  respect  to  the           reservation   and   allotment   of   symbols   and           recognition of  political parties,  for which this           order makes no 718           provision or  makes  insufficient  provision,  and           provision is  in the  opinion  of  the  Commission           necessary for  the smooth  and orderly  conduct of           elections."      In our judgment, the High Court was clearly in error in holding that  the Symbols  Order was not an order made under the Act  and therefore the change of allotment of symbols by the Returning  Officer in  compliance  with  the  directions issued by  the Election Commission, even if it was in breach of paragraph  13 thereof,  did not  amount to non-compliance with the  provisions of the Constitution, or the Act, or any rules or  orders made under the Act and therefore the matter fell outside the ambit of s. 100 (1) (d) (iv) of the Act. It is however  urged by learned counsel for the respondent that

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the Symbols  Order was  not an  order made  under  the  Act. Emphasis is  laid on  the words "under the Act" occurring in s. 100  (1) (d) (iv) of the Act. We are afraid, the argument is too  tenuous to be accepted. The Symbols Order was issued by  the   Election  Commission   under  Art.   324  of   the Constitution  in   exercise  of   its  undoubted  powers  of superintendence, direction and control of the conduct of all elections to  Parliament and  Legislature of every State. It is also  relatable to  rules 5  and 10  of  the  Conduct  of Elections Rules framed by the Central Government in exercise of their  powers under  s. 169  of the  Act. Rule  4 of  the Conduct of  Elections Rules  provides that  every nomination paper presented  under s. 33 of the Act shall be in Forms 2A to 2E,  as may  be appropriate.  The Forms 2A and 2B require the candidate  to choose symbol. Under r. 5 (1) the Election Commission by  notification may specify the symbols that may be chosen  by candidates  at elections  to parliamentary and assembly constituencies.  Under  r.  10  (4)  the  Returning Officer shall  consider the  choice of  symbols expressed by contesting candidates and "subject to any general or special direction issued by the Election Commission" allot different symbols to different candidates. The allotment of symbols by the Returning  Officer is  final under  sub-r. (5)  of r. 10 except where  it is  inconsistent with any directions issued by the  Election Commission in that behalf in which case the Election Commission  may revise the allotment in such manner as it thinks fit.      In Sadiq  Ali &  Anr. v. Election Commission of India & Ors.(1) Khanna, J. speaking for the court, after setting out the scheme of 719 the Symbols  Order, explained  the reasons  which led to the introduction of symbols, in these words:           "It is  well known  that overwhelming  majority of      the electorate  are illiterate. It was realised that in      view of  the handicap  of illiteracy,  it might  not be      possible for  the illiterate voters to cast their votes      in favour of the candidate of their choice unless there      was some  pictorial representation  on the ballot paper      itself whereby such voters might identify    the      candidate of  their choice.  Symbols  were  accordingly      brought into use. Symbols or emblems are not a peculiar      feature of  election law  of India.  In some countries,      details in  the form  of letters of alphabet or numbers      are added  against the  name of each candidate while in      others, resort  is made  to  symbols  or  emblems.  The      object is  to ensure that the process of election is as      genuine and fair as possible and that no elector should      suffer from  any handicap in casting his vote in favour      of a candidate of his choice."      The Symbols  Order made  by the  Election Commission in exercise of its power under Art 324 of the Constitution read with rs.  5 and 10 of the Conduct of Elections Rules and all other powers  enabling it  in that behalf, are in the nature of general  directions issued  by the Election Commission to regulate the  mode of allotment of symbols to the contesting candidates.  It   is  a  matter  of  common  knowledge  that elections in our country are fought on the basis of symbols. It must  but logically  follow as a necessary corollary that the Symbols  Order is an order made under the Act. Any other view would  be destructive  of the very fabric of our system of holding parliamentary and assembly constituency elections in the country on the basis of adult suffrage.      As to  the second  question,  there  can  be  no  doubt whatever that  the High Court was not justified in directing

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that the  averments in  paragraphs 4  to 18  of the election petition be  deleted on  the  ground  that  there  was  non- disclosure of  material facts  sufficient to  give rise to a cause of action under s. 100 (1) (d) (iv) of the Act.      The order  passed  by  the  High  Court  directing  the striking out  of paragraphs 4 to 18 of the election petition can hardly be supported. It is not clear from the order that the High Court 720 proceeded to  act under  Order VII, r. II (a) or under Order VI, r.  16 of  the Code in passing the order that it did. It is rightly conceded that the High Court could not have acted under Order  VII, r.  II (a)  of the  Code. Where the plaint discloses no cause of action it is obligatory upon the Court to reject  the plaint  as a whole under Order VII, r. II (a) of the  Code, but the rule does not justify the rejection of any particular  portion of a plaint: Mulla’s Civil Procedure Code, 13th  Edn., Vol.  1, p. 755. It is therefore necessary to consider whether the order passed by the High Court could be justified  under order VI, r. 16 of the Code, which reads as follows:           "16.Striking out  pleadings-The Court  may at  any      stage of  the proceedings  order to  be struck  out  or      amended 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."      The order  passed by  the  High  Court  directing  that paragraphs 4  to 18  of the  election petition be struck out cannot be  sustained on  the terms of Order VI, r. 16 of the Code. There is no finding reached by the High Court that the averments in paragraphs 4 to 18 of the election petition are either unnecessary, frivolous or vexatious, or that they are such as  may tend  to prejudice, embarrass or delay the fair trial of  the election,  nor is  there any  finding that the averments therein  are such as to constitute an abuse of the process of  the court.  That being so, the High Court had no power to  direct the  striking out  of paragraphs 4 to 18 of the election petition.      It is  submitted by  learned counsel for the respondent that there  is non-disclosure  of the necessary facts by the appellant in  paragraphs 4 to 18 of the election petition to show as  to how  the order  of the  Election Commission  was illegal, or  as to  how there  was non-compliance  with  the provisions of  the Constitution, or the Act, or any rules or orders made  under the  Act within the meaning of s. 100 (1) (d) (iv)  of the  Act. He urges that it was incumbent on the appellant to 721 find out  the circumstances in which the Election Commission issued the  necessary  instructions  as  to  the  change  of symbols under  paragraph 18  of the  Symbols  Order.  It  is contended that  the High  Court was  therefore justified  in striking out  paragraphs 4 to 18 of the election petition on the ground  that they  do not  disclose any  cause of action inasmuch as  the averments  therein do not constitute a plea of non-compliance  with the  provisions of the Constitution, or the  Act, or any rules or orders made under the Act so as to  attract   s.  100   (1)  (d)  (iv)  of  the  Act.  These contentions, in our opinion, cannot be given effect to.      The approach  of the  High Court  in dealing  with  the preliminary issue  appears  to  be  wholly  unwarranted.  In

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dealing with  the question whether or not paragraphs 4 to 18 of the  election petition  disclose any cause of action, the High  Court   has  cast  on  the  appellant  the  burden  of disclosing facts  not within his knowledge. It speaks of his duty to produce evidence prima facie to show that the change of allotment  of symbols  by the  Returning Officer  to  the respondent was  in contravention of r. 10 (5) of the Conduct of Elections  Rules read  with paragraph  13 of  the Symbols Order. It  then  observes  that  the  onus  was  on  him  to establish  as  to  how  and  under  what  circumstances  the Election Commission  issued the instructions in question. It accepts  the  contention  of  the  respondent  that  it  was incumbent on the appellant to set himself on an inquiry into these circumstances. According to the High Court, failure to disclose the circumstances which led the Election Commission to issue directions or instructions to the Returning Officer to effect  a change  in the allotment of symbols, amounts to non-disclosure  of  material  facts  which  must  entail  in deletion of the averments in paragraphs 4 to 18 by which the appellant seeks relief under s. 100 (1) (d) (iv) of the Act. We are  afraid, the  High Court has viewed the matter from a wrong perspective.      We  find  it  difficult  to  comprehend  the  reasoning adopted by  the High  Court that there was non-disclosure of material facts.  True it  is that  it begins the judgment by observing that  a question of this nature, as it must be so, has to be decided on a consideration of the averments in the election petition  alone, and the allegations in the written statement  cannot  be  taken  into  account.  A  preliminary objection that  the election  petition is  not in conformity with s.  83 (1)  (a) of the Act i.e. it does not contain the concise  statement  of  the  material  facts  on  which  the petitioner relies is but a plea in the 722 nature of  demurrer and  in deciding  the question the Court has to  assume for this purpose that the averments contained in the  election petition  are  true.  Unfortunately,  while deciding the  preliminary issue  the  High  Court  has  made certain observations which tend to show that the allegations in the written statement were very much present in its mind. In repelling  the  contention  of  the  appellant  that  the instructions issued  by  the  Election  Commission  for  re- allotment of  symbols were  referable to paragraph 18 of the Symbols Order, the High Court observes:           "Upon the  use of  word "instructions" in Annexure      P-1, it  was sough  to be  inferred that  the  issuance      thereof could  only be  within the  ambit of para 18 of      the Symbols  Order, since  the change  of  Symbols  was      outside the  ambit of para 18 therefore the said change      was  illegal.   The  argument  has  not  impressed  me,      inasmuch as in the normal course of things the Election      Commission,   having    passed   an    order,    issues      instructions, for  its compliance.  As such, the use of      the "instructions"  in any communication cannot lead to      an inference  of their being issued under the said para      18 of the Symbols Order."      It then goes on to observe:           "The petitioner  has not  at all  disclosed in the      election petition  as to  what was exactly the order of      the Election  Commission  behind  the  instructions  in      Annexure P-1  and how  it was  in contravention  of the      provisions of  the aforesaid  Act or the rules or order      made thereunder."      It proceeds to say:           "Thus, the argument of the learned counsel for the

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    returned candidate  proceeded that  before  filing  the      election petition  it was incumbent upon the petitioner      to find  out the  entire  circumstances  in  which  the      Election Commission  passed the  order as to the change      of symbols  and consequently  issued instructions  vide      Annexure P-1 to the Returning Officer."      In  coming  to  the  conclusion  that  there  was  non- disclosure of material facts, the High Court observes:           "In  the   complete  absence   of   the   material      circumstances,  non-compliance   with   the   aforesaid      provisions could not be 723      spelt out  and hence  in the  election petition none of      the said  provisions has been specifically sought.... .      I direct that paras 4 to 18 of the election petition be      deleted." These observations  made by  the High  Court  proceed  on  a misconception of law.      It is therefore necessary to consider whether the order passed by  the High Court could be justified under Order VI, r. 16  of the  Code. That would depend on whether or not the election petition  is in conformity with the requirements of s. 83 of the Act, which reads as follows:           "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 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 from           in support  of  the  allegation  of  such  corrupt           practice and the particulars thereof.      (2)  Any schedule  of annexure  to the  petition  shall           also be  signed by  the petitioner and verified in           the same manner as the petition." Cl. (a)  of s.  83 is  based on  the provisions of Order VI, r.2(1) of  the Code which states the basic or cardinal rules of pleadings and is in the following terms: 724      "2. Pleading  to state material facts and not evidence-      Every pleading  shall  contain,  and  contain  only,  a      statement in  a concise  form of  the material facts on      which the  party  pleading  relies  for  his  claim  in      defence, as  the case  may be,  but not the evidence by      which they are to be proved." Cl. (a)  of sub-s.  (1) of  s. 83 of the Act enjoins that an election petition  shall contain  a concise statement of the material facts  on which  the election petitioner relies. It is no  part  of  the  statement  of  claim  of  an  election petitioner to  anticipate the  defence and  to state what he would have  to say  in answer to it. Cl. (b) of sub-s.(1) of s. 83  interdicts that an election petitioner must set forth full  particulars  of  any  corrupt  practice  on  which  he challenges the  election of  the returned candidate under s. 123(7) including  as full statement as possible of the names of the  parties  alleged  to  have  committed  such  corrupt

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practice and  the date  and place  of the commission of each such practice.  It is more or less based on Order VI, r.4 of the Code which reads:      "4. In  all cases in which the party pleading relies on      any misrepresentation,  fraud, breach  of trust, wilful      default, or  undue influence, and in all other cases in      which particulars  may be  necessary beyond such as are      exemplified in  the forms  aforesaid, particulars (with      dates and  items if  necessary) shall  be stated in the      pleading." The High  Court has  ample power  while trying  an  election petition to  direct further and better particulars as to the nature of  the claim  or defence under Order VI, r. 5 of the Code which reads:      "5. A further and better statement of the nature of the      claim or  defence, or further and better particulars of      any matter  stated in  an pleading  may in all cases be      ordered, upon such terms, as to costs and otherwise, as      may be just." Under Order  VI, r.5,  particulars will  be ordered  of  the material facts  on which  the party  pleading relies for his claim or  defence. If a party’s pleading is defective he can also seek  leave  to  alter  and  amend  his  own  defective pleading under  Order VI,  r.17. There  is no  express  rule providing for  the consequence of a party failing to deliver particulars required  by order  of Court.  but the decisions are 725 to  the   effect  that  either  by  the  order  calling  for particulars or  by a  later order  the Court  can direct the claim or  defence to  be struck out under Order VI, r. 16 of the Code.      There  is  distinction  between  "material  facts"  and "particulars" The  word "material facts" show 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  or  plaint becomes bad.  The distinction  which has  been made  between "material facts" and "particulars" was brought out by Scott, L.J. in  Bruce v.  Odhams Press  Ltd. (1)  in the  following passage:           "The cardinal  provision  in  r.  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" fact  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 O. xxv, r.      4; See Philips v. Philips (2): or "a further and better      statement" of claim may be ordered under O.XIX r. 7.           The function  of "particulars" under r. 6 is quite      different. They  are not  to be  used in  order to fill      material gaps  in a  demurrable statement of claim-gaps      which  ought   to  have   been  filled  by  appropriate      statements of the various material facts which together      constitute the  plaintiff’s cause of action. The use of      particulars is  intended to  meet a  further and  quite      separate requirement  of pleading,  imposed in fairness      and justice to the defendant. Their function is to fill      in the  picture of the plaintiff’s cause of action with      information sufficiently  detailed to put the defendant      on his  guard as  to the  case he  has to  meet and  to      enable him to prepare for trial." The dictum  of Scott,  L.J. in Bruce’s case, supra, has been quoted with  approval by this Court in Samant N. Balakrishan

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v. George  Fernandez &  Ors.(3) and while observing that the requirements of 726 s. 83  are mandatory, the distinction between material facts and particulars was brought out in the following terms:           "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." Thus, the  word "material"  in material facts under s. 83 of the Act means facts necessary for the purpose of formulating a complete  cause of  action; and if any one "material" fact is omitted,  the statement or plaint is bad; it is liable to be struck  out.  The  function  of  "particulars"  is  quite different, the  use of  particulars is  intended to  meet  a further and  quite separate  requirement of pleading imposed in fairness  and justice  to the  returned candidate.  Their function  is   to  fill  in  the  picture  of  the  election petitioner’s cause  of action  with information sufficiently detailed to  put the  returned candidate  on his guard as to the case  he has  to meet  and to  enable him to prepare for trial in  a case  where his  election is  challenged on  the ground of any corrupt practice.      Sub-s. (1) of s. 87 of the Act enacts that the trial of an election  petition shall  be, as  nearly as  may  be,  in accordance with  the procedure  applicable under the Code of Civil Procedure,  1908 to the trial of suits, subject to the provisions of  the Act  and of  any rules  made  thereunder. There are  no express  provisions in the Act or in the rules made thereunder as contemplated under sub-s. (1) of s. 87 of the Act  to deal  with the  situation like  the present. The provisions of the Code accordingly must apply in such a case as provided  by sub-s.  (1) of  s. 87 of the Act. That being so, the  provisions of  Order VI  which are integral part of the Code  come into  play except  to the  extent modified by sub-s. (5) of s. 86 of the Act.      Learned counsel  for the  respondent  however  contends that the  High Court  had no  power to  direct  further  and better particulars  under Order  VI, r.  5 of  the Code.  In support  of  the  contention,  reliance  is  placed  on  the decision of the Madhya Pradesh High 727 Court in  Hari Vishnu Kamath v. The Election Tribunal & Anr. (1) It  is urged  that the particulars given in the petition were insufficient  to  formulate  a  cause  of  action  and, therefore the  High Court  had the  power to  strike out the pleadings under  Order VI, r. 16 of the Code. The contention cannot, in our opinion, be accepted. In Bhikaji Keshao Joshi & Anr.  v. Brijlal  Nandlal  Joshi  &  Ors,  (2)  the  Court recognized a  power in the Tribunal to direct particulars of a corrupt practice and to strike out the pleadings in a case where there  was a  default in  compliance with  a  previous order directing  particulars. Thereafter, there was a change brought about  in law by Act 27 of 1956. Sub-s. (5) of s. 90 introduced by  that Act  recast the  old sub-s. (3) of s. 83 and took  away the  power of  the Election Tribunal to order further and  better particulars  of corrupt  practice  while retaining the  power to  allow  amendment  or  amplification though the language used was slightly different.      The decision  of the  Madhya Pradesh High Court in Hari

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Vishnu Kamath’s case, (supra) on which reliance is placed is inapplicable. A question arose whether the Election Tribunal was justified  in directing furnishing of better particulars of certain  corrupt practices.  There, the  High  Court  was dealing with  the Act as it stood after its amendment by Act 27 of  1956. In view of the change in law brought about, the High Court  held that the rule as laid down by this Court in Bhikaji  Keshao   Joshi’s  case,   (supra)  was   no  longer applicable. After  the repeal  of sub-s. (3) of s. 83 of the Act by  Act 27 of 1956, which introduced in its place sub-s. (5) of  s. 90,  conferring power  on the  Tribunal to  allow amendment or  amplification of  particulars, the  High Court held that the word "allowed" meant allowed on an application and therefore  there was  no power  left with  the  Tribunal under sub-s. (5) of s. 90 to direct the furnishing of better particulars and  that there  would equally  be no  power  to strike  out   the  pleadings   for  default   of  furnishing particulars, if  directed. It  was however, held that it was open to the Tribunal to find that the particulars given in a petition were insufficient for trial. It is evident that the decision of  the High Court turned on the provisions of sub- s. (5)  of s.  90, which is identical to sub-s. (5) of s. 86 of the  Act, but both these provisions relate to allowing an amendment of  the election petition subject to such terms as to costs or otherwise with a view to furnish the particulars of any corrupt practice. The decision of the 728 Madhya Pradesh  High Court  in Hari  Vishnu  Kamath’s  case, (supra) is therefore distinguishable.      It must accordingly be held that the High Court was not justified in striking out paragraphs 4 to 18 of the election petition acting presumably under Order VI, r. 16 of the Code of Civil Procedure, 1908 on the ground that the facts stated therein were not sufficient to formulate a complete cause of action under  s. 100(1) (d)(iv) of the Representation of the People Act,  1951 i.e.  due to  non-disclosure  of  material facts.      In the  result, the appeal succeeds and is allowed with costs. The  judgment of  the High  Court  striking  out  the averments in  paragraphs 4 to 18 of the election petition is set aside  and it  is directed  to proceed  with  the  trial according to law. H.L.C.                                       Appeal allowed. 729