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CASE NO.: Appeal (civil)  8102 of 2003

PETITIONER: Sardar Harcharan Singh Brar                                 

RESPONDENT: Sukh Darshan Singh & Ors.                                 

DATE OF JUDGMENT: 27/10/2004

BENCH: CJI & C.K. Thakker

JUDGMENT: J U D G M E N T

R.C. Lahoti, CJI

Elections to the Punjab Legislative Assembly were held in  the month of January-February, 2002.  We are concerned with  105 Muktsar Assembly Constituency.  There were 12 candidates  in the fray.  The constituency went to polls and after counting  the result was declared on 24.2.2002.  Sukh Darshan Singh,  respondent No. 1, who contested as an independent candidate,  secured 32,465 valid votes while the appellant Sardar Harcharan  Singh Brar, who was fielded by the Congress party, secured  32,265 valid votes.  Other candidates secured lesser votes.  The  respondent No. 1 was declared elected.

The appellant filed an election petition under sections 80,  80A and 81 of the Representation of the People Act, 1951  (hereinafter ’the Act’, for short).  The main grounds on which the  election of respondent No. 1 was sought to be set aside were  that the nomination of one on the respondents was improperly  accepted which had resulted in the result of the election being  materially affected and that the respondent No. 1 was guilty of  having committed the corrupt practice of obtaining the  assistance of a police officer within the meaning of Section  123(7) of the Act.  Several instances of commission of such  corrupt practice were set out in the election petition.

On the pleadings being completed, the learned Designated  Election Judge of the High Court framed six issues, out of which  the following two have been heard and decided as preliminary  issues by the impugned judgment :-   1.      Whether the averments made in the election  petition lack in material facts and do not disclose  any cause of action?  If so, its effect?  OPR 2.      Whether the affidavit filed in support of the  election petition is not valid?  If so, its effect?  OPR Both the issues have been answered against the election  petitioner-appellant with the result the election petition has been  held liable to be dismissed and dismissed accordingly.  The  election petitioner has come up in appeal under Section 116 A of  the Act.   

The short point which arises for decision in this appeal is  whether the election petition could have been held liable to be  dismissed at the threshold and without being tried and heard on  merits.  Under Section 86(1) of the Act, an election petition is

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liable to be dismissed without being set down for trial, if it does  not comply with the provisions of Section 81 or Section 82 or  Section 117.  Sections 81, 82 and 117 respectively provide for  presentation of petition, parties to the petition and security for  cost.  Obviously the objections raised by the contesting  respondents forming basis of the two preliminary issues are not  covered by Section 86(1) of the Act.  The High Court has  proceeded on the premises that inasmuch as the averments  made in the election petition alleging the commission of corrupt  practice do not disclose material facts as required by Section 83  of the Act and the election petition is also not supported by an  affidavit as required by proviso to sub-Section (1) of Section 83  of the Act read with Rule 94A of the Conduct of Elections Rules,  1961 (hereinafter ’the Rules’, for short), the election petition  does not disclose any cause of action and therefore does not  raise any triable issue.  It is the correctness or otherwise of the  view taken by the High Court which arises for consideration. Section 83 of the Act and Rule 94A of the Rules provide as  under : Act "83. Contents of petition \026 (1) An election petition \026

(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.

        Rules

94A. Form of affidavit to be filed with election petition \026  The affidavit referred to in the proviso to sub-section (1)  of section 83 shall be sworn before a magistrate of the  first class or a notary or a commissioner of oaths and shall  be in Form 25."  

So far as the law centering around the above-said  provisions is concerned, several decided cases of this Court have  covered the field and the law is settled leaving hardly any scope  for further elaboration.  We would refer only to a few of the  cases which would suffice for above purpose.  

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In Samant N. Balakrishna and another  Vs. George  Fernandez and others, (1969) 3 SCC 238, the mandatory  nature of the provisions contained in Section 83 was dealt with  and consequences flowing from any breach of provision were set  out.  It was held that Section 83 is mandatory and requires the  election petition to contain first a concise statement of material  facts and then requires the fullest possible 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.  The material facts 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.

Some of the principles elaborated in Raj Narain Vs. Smt.  Indira Nehru Gandhi and another (1972) 3 SCC 850 are  relevant for our purpose.  Dealing with the corrupt practice, the  Court held that : (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 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

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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 sounded a note of caution : "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."   

        The principles have been reiterated recently in H.D.  Revanna Vs. G. Puttaswamy Gowda and ors. (1999) 2 SCC  217, V.S. Achuthanandan Vs. P.J. Francis and anr. (1999) 3  SCC 737 and Mahendra Pal Vs. Ram Dass Malander and ors.  (2000) 1 SCC 261.  We are tempted to quote the following  passage from the three-Judge Bench decision in Mahendra  Pal’s case (supra) wherein the learned Chief Justice has  summed up the statement of law in the following words:  

"Section 83(1)(a) of the Act mandates that in  order to constitute a cause of action, all material  facts, that is, the basic and preliminary facts which  the petitioner is bound under the law to  substantiate in order to succeed, have to be  pleaded in an election petition.  Whether in an  election petition, a particular fact is material or not  and as such required to be pleaded is a question  which depends upon the nature of the charge  levelled and the facts and circumstances of each  case.  The distinction between "material facts" and  "particulars" has been explained by this Court in a  large number of cases and we need not refer to all  those decided cases.  Facts which are essential to  disclose a complete cause of action are material  facts and are essentially required to be pleaded.  On  the other hand "particulars" are details of the case  set up by the party and are such pleas which are  necessary to amplify, refine or explain material  facts.  The function of particulars is, thus, to  present a full picture of the cause of action to make  the opposite party understand the case that has  been set up against him and which he is required to  meet.  The distinction between "material facts" and  "material particulars" is indeed important because  different consequences follow from a deficiency of  such facts or particulars in the pleadings.  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 of the Code of Civil

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Procedure.  In the case of a petition suffering from  a deficiency of material particulars the court has the  discretion to allow the petitioner to supply the  required particulars even after the expiry of  limitation.  Thus, whereas it may be permissible for  a party to furnish particulars even after the period  of limitation for filing an election petition has  expired, with the permission of the court, no  material fact unless already pleaded, can be  permitted to be introduced, after the expiry of the  period of limitation."

       The learned Designated Election Judge has been  undoubtedly at pains in dealing with the several averments  made in the election petition and closely examining and  analysing the same in order to find out whether the  requirements of Section 83 (1) were satisfied.  The learned  Judge then formed an opinion that the averments made were  lacking in material facts.  During the course of hearing, the  learned counsel for both the parties have carried us through the  averments made in the election petition, parawise and almost  word by word, in an attempt at substantiating the submissions  made by them respectively.  According to the learned counsel for  the writ petitioner-appellant, the averments made in the election  petition contained not only the material facts but also the  particulars and it is not necessary to plead the evidence or the  matters of minute details.  On the contrary, the learned counsel  for the respondent No. 1, while supporting the judgment of the  High Court, has submitted that the averments made in the  election petition fall short of disclosing all material facts and  therefore, cannot be tried.   

       Having gone through the contents of the election petition,  we are satisfied that the High Court has not been right in  directing the petition to be dismissed at the threshold by forming  an opinion that the averments made in the election petition were  deficient in material facts.  It is not necessary to burden this  judgment with reproduction of the several averments made in  the election petition.  The High Court has already done it.  The  test laid down in the several authorities referred to hereinabove  and in particular in the case of Raj Narain (supra) is fully  satisfied.  The grounds of corrupt practice and the facts  necessary to formulate a complete cause of action have been  stated.  Even the particulars have been given.  However, if the  Court feels that the particulars as given in the petition are  deficient in any manner the petitioner can be directed to supply  the particulars and make the deficiency good.  In any case,  deficiency in particulars could not have been a ground for  dismissing the petition at the threshold.   It is only the non- supply of particulars though ordered by the Court which could  have led to either striking off of the pleadings or refusal to try  the related instances of alleged corrupt practice.  We cannot  countenance the view taken by the High Court.

       So is the case with the defect pointed out by the High  Court in the affidavit filed in support of the election petition  alleging corrupt practice by the winning candidate. The proviso  enacted to sub-Section (1) of Section 83 of the Act is couched in  a mandatory form inasmuch as it provides that a petition  alleging corrupt practice shall be accompanied by an affidavit in  the prescribed form in support of the allegations of such corrupt  practice and the particulars thereof.  The form is prescribed by  Rule 94A.  But at the same time, it cannot be lost sight of that  failure to comply with the requirement as to filing of an affidavit  cannot be a ground for dismissal of an election petition in limine

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under sub-Section (1) of Section 86 of the Act.  The point is no  more res integra and is covered by several decisions of this  Court.  Suffice it to refer to two recent decisions namely G.  Mallikarjunappa and anr. Vs. Shamanur Shivashankarappa  and ors. (2001) 4 SCC 428 and Dr. Vijay Laxmi Sadho Vs.  Jagdish (2001) 2 SCC 247, both three-Judges Bench decisions,  wherein the learned Chief Justice has spoken for the Benches.  It  has been held that an election petition is liable to be dismissed in  limine under Section 86(1) of the Act if the election petition does  not comply with either the provisions of "Section 81 or Section  82 or Section 117 of the RP Act".  The requirement of filing an  affidavit along with an election petition, in the prescribed form,  in support of allegations of corrupt practice is contained in  Section 83(1) of the Act.  Non-compliance with the provisions of  Section 83 of the Act, however, does not attract the  consequences envisaged by Section 86(1) of the Act.  Therefore,  an election petition is not liable to be dismissed in limine under  Section 86 of the Act, for alleged non-compliance with provisions  of Section 83(1) or (2) of the Act or of its proviso.  The defect in  the verification and the affidavit is a curable defect.  What other  consequences, if any, may follow from an allegedly "defective"  affidavit, is required to be judged at the trial of an election  petition but Section 86(1) of the Act in terms cannot be attracted  to such a case.          Having formed an opinion that there was any defect in the  affidavit, the election petitioner should have been allowed an  opportunity of removing the defect by filing a proper affidavit.   Else the effect of such failure should have been left to be  determined and adjudicated upon at the trial, as held in G.  Mallikarjunappa and anr.’s case (supra).          For the foregoing reasons, the appeal is allowed with costs.   The judgment of the High Court is set aside.  The election  petition shall stand restored on the file of the High Court for  hearing and decision consistently with what has been stated  hereinabove.