http://JUDIS.NIC.IN SUPREME COURT OF INDIA Page 1 of 13  

PETITIONER: UDHAV SINGH

       Vs.

RESPONDENT: MADHAV RAO SCINDIA

DATE OF JUDGMENT10/10/1975

BENCH: SARKARIA, RANJIT SINGH BENCH: SARKARIA, RANJIT SINGH BHAGWATI, P.N.

CITATION:  1976 AIR  744            1976 SCR  (2) 246  1977 SCC  (1) 511  CITATOR INFO :  E          1984 SC 621  (7)  R          1986 SC1253  (11)  R          1987 SC1577  (10)  D          1990 SC 924  (31)

ACT:      Representation of  the People Act, 1951-Sec. 82(b), 86- 123 (2),  123(i) &  123(ii)-Non-joinder of candidate against whom allegation  of corrupt  practice is made whether fatal- Whether objection  must be  raised in  written statement  or whether can  be taken  by  separate  application  after  the appellant’s evidence  is over-Whether  non-compliance can be waived-C.P.C. Order  8 rule.  2-Distinction between material facts and material particulars.

HEADNOTE:      Six candidates  filed nomination  papers for contesting the  election   to  Lok   Sabha  from   Guna   Parliamentary Constituency in  March. 1971.  Pratap Singh  and Gaya Prasad withdrew their  candidature after  their  nomination  papers were found to be in order on scrutiny. The respondent herein was declared  elected by  a margin  of about  1,41,000 votes over his close rival Jadhav. The appellant an elector of the Constituency filed  an  election  petition  challenging  the election of the respondent on two grounds (1) The respondent incurred or  authorised expenditure  in excess  of the limit prescribed, (2)  The workers  of  the  respondent  including Pratap Singh,  with his  consent had threatened the electors with bodily  injuries and  criminal intimidation not to vote for Jadhav.  The respondent  filed his written statement and denied the charges made by the appellant. Issues were framed and evidence  of the appellant was recorded. Thereafter, the respondent  submitted   an  application  alleging  that  the appellant in  his  petition  alleged  the  commission  of  a corrupt practice  within the meaning of s. 123(2) of the Act by Shri Pratap Singh one of the candidates but the failed to show him as a respondent and as such the petition was liable to be  dismissed under  s. 86  on account  of non-compliance with the  mandate of s. 82(b). The appellant in his reply to the said  application denied  that any  allegation was  made against Shri  Pratap  Singh  and  further  stated  that  the respondent did  not raise  this  objection  in  his  written

http://JUDIS.NIC.IN SUPREME COURT OF INDIA Page 2 of 13  

statement and that he should not be allowed to raise it at a belated stage.  The appellant  also contended that since the objection as  to the  non-joinder of the necessary party was not taken  at the earliest, it should be deemed to have been waived by the respondent.      The High  Court found  that the allegation against Shri Pratap Singh constituted a charge under s. 123(2) of the Act and that  non-joinder of  Shri Pratap  Singh as a respondent was fatal  to the  petition. On  merits also, the High Court found against the appellant on both the issues.      On appeal it was contended by the appellant:      1. In  view of  mandate of  Order 8 Rule 2 of C.P.C. it was obligatory  for the respondent to take all pleas of non- joinder in the written statement.      2. In any case, the respondent should be deemed to have waived his rights.      3. No  allegations of  corrupt practice  were, in fact, made against Shri Pratap Singh.      4. Assuming  that there  is an  allegation against Shri Pratap Singh,  the allegation is so bereft of material facts and material  particulars that  it  does  not  constitute  a complete charge of corrupt practice under s. 123(2).      On the other hand, the respondent contended;      1. That it was not obligatory to take this objection in the written statement. It was a purely legal objection which for its  determination did  not  require  any  facts  to  be pleaded. The  fatal defect  is patent  on the  face  of  the Election Petition. 247      2. Order  8  Rule  2  is  not  attracted  because  that provision  as   its  marginal  heading  shows,  enjoins  the pleading of new facts only as distinguished from pure points of  law.  In  the  alternative,  the  said  application  was additional pleading  which was  accepted by  the High Court. The appellant  had sufficient opportunity to file his reply, to the said application and was not taken by surprise.      3. Section 86 read with s. 82(b) are in the nature of a mandate to  the Court  which is bound to dismiss an election petition whenever it comes to its notice, whether on its own motion or  on the  motion of  the respondent, that there has been a non-compliance with the imperative of s. 82(b).      4. The  respondent cannot by consent, express or tacit, waive these provisions.      5. There  was a charge of corrupt practice against Shri Pratap Singh.      6. All  primary facts  as distinguished  from  material particulars, are  necessary to  constitute a complete charge of corrupt practice under s. 123(2).      Dismissing the appeal, ^      HELD: (1) The respondent was not precluded from raising the objection  as to  non-joinder merely because he has done so after  the close  of the  appellant’s evidence nor was he obliged to raise it in the written statement.                                                      [252-H]      (2) Rule  2 of  Order 8 of C.P.C. is a rule of practice and convenience  and justice.  This procedural  rule  is  to subserve and  not to  enslave the  cause of justice. It lays down broad  guidelines and  not  cast  iron  traps  for  the defendant in  the matter  of drawing  up  his  statement  of defence. [253-A]      (3) The  plea raised  by the  respondent arises  out of allegations made  in the  petition itself  and raise  a pure question of law. No question of prejudice or surprise to the appellant  arises.   There  are   various  decisions   where

http://JUDIS.NIC.IN SUPREME COURT OF INDIA Page 3 of 13  

objection as  to non-joinder  of a  necessary  party  in  an election petition  was allowed  to be  raised  by  a  simple application submitted long after presentation of the written statement. [253-G]      (4) There  was a  clear allegation  of corrupt practice against Shri Pratap Singh. [259-E]      (5) All primary facts which must be proved at the trial by a  party to  establish the existence of a cause of action or 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 grounds relied upon  and the  special  circumstances  of  the  case. Particulars on  the other  hand are  the details of the case set up  by the  party.  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 gist  of the  corrupt practice  of  undue  influence  as defined in  s. 123(i)  is direct or indirect interference or attempt to  interfere on  the part  of the  candidate or his agent. The  Election Petition alleged that Shri Pratap Singh and others  threatened the  workers of  the rival  candidate with bodily  injury threatening  them not  to vote for rival candidate. It  is thus  clear that  all the  material  facts constituting a  complete charge of corrupt practice under s. 123(ii)  against  Shri  Pratap  Singh  were  stated  in  the petition. The  approximate date of the threat which was only a material  particular was  also given.  Only the places and the precise  time of  giving the  threat were not stated but these were,  at best  material particulars  and not material facts. [257C-F, 258-D-E, G, 259-A]      (6) It was obligatory for the appellant to implead Shri Pratap Singh  as a respondent. The rationale behind s. 82(b) is a  fundamental principle  of natural justice. A charge of corrupt practice  against a  respondent if  established, has the effect  of debarring  him from  being a  candidate at an election for a 248 considerably long  time.  Section  82(b)  is  in  clear  and peremptory terms.  The respondent  cannot by consent express or tacit, waive these provisions.                                                    [252E, F]

JUDGMENT:      CIVIL APPELLATE JURISDICTION : Civil Appeal No. 2651 of 1972.      From the  Judgment and  Order dated  the 27th  October, 1972 of  the Madhya  Pradesh High Court in Election Petition No. 5 of 1971.      G. N.  Dixit, S. K. Mehta, M. Qamaruddin and P. N. Puri for the Appellant.      S. G.  Gupte, R.  N. Bhalgotra,  S. S.  Khanduja, Ashok Chitale, S. R. Chide and V. P. Gupta for the Respondent.      The Judgment of the Court was delivered by      SARKARIA,  J.   This  appeal   is  directed  against  a judgment, dated  October 27,  1972, of  the  High  Court  of Madhya Pradesh dismissing the election petition filed by the appellant to question the election of the respondent, to Lok Sabha.

http://JUDIS.NIC.IN SUPREME COURT OF INDIA Page 4 of 13  

    Six candidates  filed nomination  papers for contesting the  election   to  Lok   Sabha  from   Guna   Parliamentary Constituency in  March 1971.  Out  of  them,  Sarvshri  Shiv Pratap Singh  and Gaya  Prasad  withdrew  their  candidature after their  nomination papers  were found  to be  in  order after scrutiny,  leaving four  candidates in the field viz., Sarvshri  Madhavrao   Scindia,  Deorao   Krishnarao  Jadhav, Narayan Singh  ’Albela’ and  Bundel  Singh  to  contest  the election. Shri  Madhav Rao Scindia respondent herein who was sponsored by  the Jan Sangh was declared elected by a margin of 1,41,090  votes  over  his  nearest  rival,  Shri  Deorao Krishnarao  Jadhav,   sponsored  by   the  Indian   National Congress.      Udhav Singh,  an elector  of the Constituency, filed an election  petition   on  26-4-1971,   in  the   High   Court challenging the  election of  the  respondent  on  two  main grounds viz.,  (i) that  the respondent  and/or his election agent had  incurred or  authorised expenditure in connection with the  election in  excess of  the limit  of  Rs.  35,000 prescribed under  s. 77(3) of the Act read with r. 90 of the Conduct of  Election Rules,  1961. It  was alleged  that the respondent made  a tour  in the  Constituency by helicopters and showed  Rs. 5,000 only as an expense towards the cost of the aviation  fuel but  did not  show the  hiring and  other charges in  respect thereof. It was further alleged that the respondent hired  and used motor vehicles, not less than 18, but did not show the expenditure incurred in respect thereof in the  statement of  election expenses  submitted by him to the Election Commission;      (ii) that  the workers  of  the  respondent,  with  his consent, had  threatened the  electors with  bodily injuries and criminally  intimidated them not to vote for Shri Deorao Krishnarao Jadhav, the Congress candidate. Five instances of such threats  and intimidation  interfering  with  the  free exercise of electoral rights, were set out in clauses (i) to (v) of  the original  Paragraph  10(III)  of  the  petition, which, after  amendment,  was  renumbered  as  Para  11(iv). Clause (iv) of Paragraph 11 is as follows:           "That, on  or before  22-2-71, Shri  Mohan  Prasad      Ojha, a  Congress Worker  of Village Umri (Tehsil Guna)      was threaten- 249      ed at  pistol point  by the  workers on  the respondent      with his  consent, Shri Shiv Pratap Singh and others of      Umri threatened  not to  vote and  canvass in favour of      the Congress  candidate, Deorao  Krishnarao Jadhav  and      threatening with dire consequences."      Process was  issued to the lone respondent impleaded in the election  petition. On  28-5-1971, an  advocate  put  in appearance on his behalf. In the written statement presented on 24-9-1971  the respondent  traversed the  allegations  of corrupt practices  made in the petition. In answer to clause (iv) of Paragraph 11 of the petition, the respondent stated:           "The allegations  of the  petitioner  that  on  or      before 22-2-1971  Shri Mohan  Prasad Ojha,  a  Congress      Worker of the village Umri (Tehsil Guna) was threatened      at pistol  point by  the workers of the respondent with      his consent  is denied. It is also denied that with the      consent of  the respondent,  Shri Shiv Pratap Singh and      others of  Umri threatened  him not to vote and canvass      in  favour   of  the  Congress  Candidate  Shri  Devrao      Krishnarao  Jadhav   and  threatened   him  with   dire      consequences. This  para is  also lacking  in  material      particulars as  to who  were the  alleged workers, what      was their names; their addresses, castes etc. It cannot

http://JUDIS.NIC.IN SUPREME COURT OF INDIA Page 5 of 13  

    therefore,  be   enquired  into.   The  allegation   is      incorrect, baseless and vague. It is also vague because      particulars as to when, where and in whose presence the      alleged consent  of the  respondent was  given are  not      mentioned."      The main issues framed on 1-10-1971 were as under:      1.   "Has the  respondent incurred  or  had  authorised           expenditure which  was more  than  the  prescribed           limit laid  down under  the Representation  of the           People Act,  1951 or the Rules made thereunder, as           detailed in  Para 10(1) and 10(II) of the petition           ?      2.(a)     Did the  worker of  the respondent  with  his                consent threaten  the voters with injury, and                criminally  intimidated  them  in  case  they                voted  for   D.K.  Jadhav   as  detailed   in                Paragraph 11 of the petition, and if so, what                is its effect ?"      Thereafter, the petitioner examined twelve witnesses on various dates,  fixed in  the case, from 16-12-1971 to 24-7- 1972.      On 3-8-1972,  an application  (No. 58/72) was submitted by the  respondent alleging that the election-petitioner has in paragraph  11(iv) of  the petition alleged the commission of a corrupt practice within the meaning of s. 123(2) of the Act, by,  Shri Shiv Pratap Singh, one of the candidates, but has failed  to join  him as  a respondent,  and as such, his petition is liable to be dismissed under s. 86 on account of noncompliance  with   the  mandate  of  s.  82(b).  In  this application, the  respondent reproduced  clause (iv) of Para 11 of the petition as follows: 250           "That on or before 22-2-71, Shri Mohan Prasad Ojha      a Congress  worker of  village Umri  (Tehsil Guna)  was      threatened at  pistol  point  by  the  workers  of  the      respondent with his consent, Shri Shiv Pratap Singh and      others of  Umri and  threatened him  not  to  vote  and      canvass in  favour of  the Congress  candidate.  Deorao      Krishnarao  Jadav   and  threatening   him  with   dire      consequences."      Notice of  this application  was given  to the election petitioner,   who   after   taking   several   adjournments, ultimately filed a reply on 28-8-1972.      In his  reply, the  petitioner  stated  that  Paragraph 11(iv) as reproduced in the respondent’s application was not a correct reproduction. It was further stated:           "It is  denied that  there has been any allegation      of corrupt  practice against Shri Shiv Pratap Singh who      was  a   candidate  at   the  aforesaid  election.  The      respondent also  understood the same thing, that is why      he did  not raise any objection for a long period of 11      months  since   the  respondent   filed   his   written      statement.           "However, though  there  is  absolutely  no  doubt      about the  identity of the said Shri Shiv Pratap Singh,      but the  basic question giving rise to this application      that an  allegation of  corrupt practice  has been made      against him  in para  11(iv) of  the petition is wholly      incorrect and  based on absolutely wrong interpretation      of the  statement of  allegation made  in the aforesaid      paragraph."      The petitioner  further stated that the objection as to non-joinder of  necessary party not having been taken at the earliest, should  be deemed  to  have  been  waived  by  the respondent.

http://JUDIS.NIC.IN SUPREME COURT OF INDIA Page 6 of 13  

    In his  rejoinder (I.A.  76/72,  dated  7-9-1972),  the respondent maintained  that Para  11(iv) had  been correctly extracted by  him in  his application dated 3-8-72, from the copy of  the election-petition  which was  served upon  him, certified to  be true  copy under  the seal and signature of Shri R.  K. Tankha,  Advocate,  the  then  Counsel  for  the petitioner. On  5-9-72, at  about 4.30  p.m. the Counsel for the respondent  on inspecting the original election petition discovered to  their amazement  that the  three  words  (now underlined  by   us)  had   been  erased  and  the  erasures initialled. It  was alleged  that this  tampering  with  the petition had been done to wriggle out of the fatal defect in the petition.  The respondent  prayed that the petitioner be recalled and allowed to be cross-examined on this point.      The learned  trial  judge  postponed  consideration  of these applications and of the objection as to non-joinder of Shri Shiv  Pratap Singh  till the  conclusion of  the trial. Thereafter the  respondent examined  his witnesses.  He also examined his  Advocate Shri Baghel, who produced Ex. R-33, a copy of the petition, he had received from the office of the High Court. The respondent closed his evidence on 9-7-72. 251      The learned trial judge, heard these objections arising out of the non-joinder of Shri Shiv Pratap Singh, along with the final arguments in this case.      Shri  Baghel,   Counsel  for   the  respondent,   while appearing in  the witness-stand was unable to say definitely whether Ex.  R-33, was  a true  copy  of  the  copy  he  had received from  the High  Court office.  In view  of this the learned Judge  held that  it had  not been proved that these erasures  in   para  11(iv)   under   initials   were   made subsequently to  the filing  of the  petition. He therefore, considered clause  (iv) of  para 11  sans the  words erased. There, as  here, it  was contended  that the  second part of clause (iv) of para 11 if properly construed would mean that Shri Shiv  Pratap Singh  and others of Umri were threatened- and not  that they  threatened-not to  vote and  canvass  in favour  of   the  Congress  candidate".  The  learned  judge repelled this  contention with  the observations that "in no circumstances of  the case  (it) is  possible to  read" para 11(iv) in  the manner suggested by the petitioner. According to him  the allegations  in  this  paragraph  constituted  a charge under sec. 123(2) of the Act against Shri Shiv Pratap Singh and  his non-joinder  as a respondent was fatal to the petition which  was liable  to be  dismissed on  that  score alone under s. 86.      On  merits   he  found  Issues  1  and  2  against  the petitioner.  In   the  result,  he  dismissed  the  election petition with costs. Hence this appeal by the petitioner.      We have  heard arguments of the learned Counsel on both sides with  regard to  the non-joinder  of Shri  Shiv Pratap Singh.      It is common ground that Shri Shiv Pratap Singh was one of the  candidates who  had withdrawn  his nomination papers for election from this Constituency, after the same had been found in  order by  the Returning Officer. There was thus no doubt that  he was  a "candidate"  for the  purpose  of  the relevant provisions of the Act. If therefore the allegations made in  cl. (iv)  of para  11 of the petition relate to him and amount  to a charge of corrupt practice against him, his non-joinder as a respondent would be fatal, to the election- petition.      Mr. Dixit,  the  learned  Counsel  for  the  appellant, contends that this objection as to non-joinder was not taken in the  written statement,  that it was raised for the first

http://JUDIS.NIC.IN SUPREME COURT OF INDIA Page 7 of 13  

time-about 14  months after the service of the notice of the election petition on the respondent-after the petitioner had examined all his witnesses in the case. It is submitted that this amounted  to wavier.  According to the learned Counsel, in view  of the  mandate of  Order 8,  rule 2, Code of Civil Procedure, it  was obligatory for the respondent to take all such pleas  showing the  petition to be non-maintainable, in his  written   statement.  Since  this  was  not  done,  the respondent should  not have been allowed to raise this plea, namely, by  an application  when the case was in an advanced stage, and  an amendment of the written statement was liable to be refused on the ground of latches.      On the  other hand,  Mr. Gupte, learned Counsel for the respondent, submits  that it was not obligatory to take this objection in the written 252 statement. It  was a  purely legal  objection which  for its determination did  not require  any facts  to be pleaded and proved by the respondent. The fatal defect, it is submitted, is patent  on the  face of  the election petition. Mr. Gupte submits that  O. 8,  r. 2,  is not  attracted  because  that provision,  as  its  marginal  heading  shows,  enjoins  the pleading of  new facts,  only  as  distinguished  from  pare points of  law. In the alternative, it is submitted that the application, dated 3-8-72, whereby this objection was raised was in  nature and  substance  additional  pleading  of  the respondent which  was accepted  as such  by the  Court.  The petitioner also submitted his reply thereto and he could not complain that  he was taken by surprise. It is further urged that the  provisions of  sec. 86, read with s. 82(b), are in the nature  of a  mandate to  the Court,  which is  bound to dismiss an  election  petition  wherever  it  comes  to  its notice, whether  on its  own motion, or on the motion of the respondent, that  there has  been a  non-compliance with the imperative of s. 82(b).      The material part of s. 82 reads thus:           Parties to the petition-A petitioner shall join as      respondent to his petition-      (a)  .  .  .  . .      (b)  any other  candidate against  whom allegations  of           any corrupt practice are made in the petition."      Behind this  provision is  a fundamental  principle  of natural  justice  viz.,  that  nobody  should  be  condemned unheard. A  charge of  corrupt practice against a candidate, if established,  entails serious  penal consequences. It has the effect  of debarring  him from  being a  candidate at an election for  a considerably  long period.  That is  why, s. 82(b) in  clear, peremptory  terms, obligates  an  election- petitioner  to   join  as  respondent  to  his  petition,  a candidate against  whom allegations  of any corrupt practice are made  in the  petition. Disobedience  of  this  mandate, inexorably attracts  s. 86 which commands the High Court, in equally imperative language, to-           "dismiss  an  election  petition  which  does  not      comply with the provisions of section 82."      The respondent  cannot by  consent, express  or  tacit, waive these  provisions or condone-a non-compliance with the imperative of  s. 82 (b). Even inaction, latches or delay on the part of the respondent in pointing out the lethal defect of non-joinder  cannot relieve  the Court  of the  statutory obligation cast on it by s. 86. As soon as the noncompliance with s.  82(b) comes  or is  brought to  the notice  of  the court, no  matter in  what manner  and at what stage, during the pendency  of the  petition, it  is bound  to dismiss the petition in unstinted obedience to the command of s. 86.

http://JUDIS.NIC.IN SUPREME COURT OF INDIA Page 8 of 13  

    Considered in  the light  of the  above enunciation the respondent was  not precluded  from raising the objection as to non-joinder,  merely because  he had  done so  after  the close of  the petitioner’s evidence, and not at the earliest opportunity. 253      Nor  was   the  respondent   obligated  to  raise  this objection only  by his  written statement,  and in  no other mode. Rule  2 of Order 8 of the Code of Civil Procedure is a rule  of   practice  and   convenience  and   Justice.  This procedural Rule  is to subserve and not enslave the cause of justice. It  lays down  broad guidelines  and not  cast-iron traps for  the defendant  in the  matter of  drawing up  his statement of defence. It says:           "The defendant  must raise  by  his  pleading  all      matters which  show the suit not to be maintainable, or      that the  transaction is  either void  or  voidable  in      point of  law, and  all such  grounds of defence as, if      not raised,  would be likely to take the opposite party      by surprise  or would  raise issues of fact not arising      out of  the plaint,  as for instance fraud, limitation,      release,  payment,   performance,  or   facts   showing      illegality."      The key-words  are those  that  have  been  underlined. These words  indicate the broad test for determining whether a  particular  defence  plea  or  fact  is  required  to  be incorporated in the written statement. If the plea or ground of defence  ’raises issues  of fact  not arising  out of the plaint’, such plea or ground is likely to take the plaintiff by surprise, and is therefore required to be pleaded. If the plea or  ground of  defence raises  an issue  arising out of what is  alleged or  admitted in the plaint, or is otherwise apparent from  the plaint,  itself, no question of prejudice or surprise  to the  plaintiff arises.  Nothing in  the Rule compels the defendant to plead such a ground, nor debars him from  setting   it  up   at  a  later  stage  of  the  case, particularly when  it does not depend on evidence but raises a pure  question of  law turning  on a  construction of  the plaint. Thus, a plea of limitation that can be substantiated without any  evidence and  is apparent  on the  face of  the plaint itself,  may be  allowed to  be taken at any stage of the suit.      An objection  on the  ground of non-compliance with the requirement of  s. 82(b)  is a  plea of  this  category.  It arises out  of allegations made in the petition itself. Such a plea  raises  a  pure  question  of  law  depending  on  a construction of  the allegations  in the  petition, and does not require  evidence for  its determination.  Such  a  plea therefore, can  be raised  at any  time even  without formal amendment of the written statement.      In the  instant case,  it was raised by an application, dated  3.8.72,   which  was  accepted  by  the  court  as  a supplementary pleading of the respondent, and the petitioner had also  pleaded in  reply to  the same.  There are several decisions wherein  an  objection  as  to  non-joinder  of  a necessary party  in an  election petition  was allowed to be raised by means of a simple application submitted long after the presentation of the written statement by the respondent.      In Rao  Abhe Singh  v. Rao  Nihal Singh,(1)  A Division Bench  (constituted  by  Dua  and  Grover  JJ.)  allowed  an objection as  to non-joinder  of a candidate, against whom a corrupt practice  was alleged,  to be  raised by  way of  an application which  was filed  after  practically  the  whole evidence in the case had been recorded. 254

http://JUDIS.NIC.IN SUPREME COURT OF INDIA Page 9 of 13  

    Other instances  wherein such  an objection was allowed to be raised by a separate application without incorporating the same  in the  written statement  by  an  amendment,  are furnished by  these cases:  Hari Gopal  Dube v.  Smt. Vijaya Raje Scindia(1);  Jagan Nath v. Jaswant Singh and ors.(2) K. Kamaraja Nadar v. Kunju Thevar and ors.(3), Mallappa Basuppa v. Basavaraj  Ayyappa(4) S.  B. Adityan  v.  Kundaswami  and ors.(5), Mohan  Singh v.  Bhanwar Lal and ors(6) Amin Lal v. Huma Mal(7).      Having rejected  the first contention of the appellant, we now pass on to the pivotal point in the case.      What should be the fair construction of the allegations in Para  11(iv) of  the petition ? Is it possible to read-as Shri Dixit  wants us  to read-this paragraph as containing a charge that  Shri Shiv  Pratap Singh and others of Umri were threatened by  the workers of the respondent, not to canvass and vote  for the Congress candidate ? Or, does it mean that Shri Mohan Prasad Ojha, an elector and a Congress worker was threatened by  Shri Shiv Pratap Singh and others of Umri not to canvass  and vote for the Congress candidate, Shri Deorao Krishnarao, Jadhav ?      Mr. Dixit  submits that Clause (iv) of Para 11 falls in two parts, separated by a comma, and the allegations in each part are  distinct from the other. The first part comprising the allegations,           "That, on  or before  22-2-71, Shri  Mohan  Prasad      Ojha, a  Congress Worker of Village Union (Tehsil Guna)      was threatened at pistol point by the workers" according to  Counsel, stands  alone, and should not be read conjointly with  the second  part which  speaks of Shri Shiv Pratap  Singh   and  others   of  Umri.  However,  not  very consistently with  this argument,  it is  urged further that since the  allegations in  the first  part are  set  out  in passive voice,  the contents  of the second part should also be deemed  to have  been expressed in passive voice. If this methodology is  adopted, the  second  part  of  Para  11(iv) according to Mr. Dixit, would read like this:           Shri Shiv  Pratap Singh  and others of Umri (were)      threatened not  to vote  and canvass  in favour  of the      Congress candidate, Deorao Krishnarao Jadhav ...."      We are  afraid, this  ingenious method  of construction after  compartmentalisation,   dissection,  segregation  and inversion of  the language  of the  paragraph, suggested  by Counsel,   runs   counter   to   the   cardinal   canon   of interpretation, according  to which,  a pleading  has to  be read as  a whole  to ascertain  its true  import. It  is not permissible to  call out a sentence or a passage and to read it out  of the  context, in  isolation. Although  it is  the substance and not merely the form that 255 has to  be looked  into, the pleading has to be construed as it stands  without addition  or  subtraction  of  words,  or change of  its apparent grammatical sense. The intention’ of the party  concerned is  to be gathered, primarily, from the tenor and terms of his pleading taken as a whole.      The construction  of Para 11(iv) suggested by Mr. Dixit is not  possible without  a radical  change in its sense and tense by  unwarranted addition  and excision  of  words.  It would necessitate  a material change in the tense by reading the verb  "threatened" as "were threatened" so that what was clearly  expressed  by  its  author  in  active  voice  gets converted into a passive voice with consequent inversion and subversion of  the original  sense. Even  the  addition  and attachment of  the word  "were"  to  the  pre-existing  verb "threatened" would not completely transform Shri Shiv Pratap

http://JUDIS.NIC.IN SUPREME COURT OF INDIA Page 10 of 13  

Singh  and  others  of  Umri  from  "threateners"  into  the "threatened"  unless   the  contra-indicative   phrase  "and threatening with dire consequences" was also amputated.      In our  opinion, the  correct way  of  construing  Para 11(iv) is  to take it as it stands, and read it not in parts but as  a whole  together with  its preamble and the rest of the pleading.  Thus read,  the relevant allegation in clause (iv) of  Para 11 would fairly and clearly admit of only this construction:           "That on  or before  22-2-71,  Shri  Mohan  Prasad      Ojha, a  Congress Worker  and elector  of village  Umri      (Tehsil Guna)  was threatened at pistol point with dire      consequences by  Shri Shiv  Partap Singh  and others of      Umri, the  workers of  the respondent with his consent,      not to  vote and  canvass in  favour  of  the  Congress      Candidate, Deorao Krishnarao Jadhav."      In  our   opinion,  this   is   the   only   reasonable construction that  the language of Para 11(iv) without undue stretching, straining  and twisting,  can bear. Indeed, from the relevant  portions of the pleadings extracted earlier in this  judgment,   it  is  evident  that  both  the  parties, including the  petitioner, had understood the allegations in Para 11(iv) in the sense in which we have construed them. It was only after the presentation of the application, dated 3- 8-72, raising the objection, the petitioner in an attempt-as the High  Court rightly  put it-"to  wriggle  out  from  the unfortunate position he was placed in not making Shiv Pratap Singh   a   party",   has   started   claiming   the   antic interpretation quite different from the one flowing from the plain language and tenor of Para 11(iv).      We have therefore no hesitation in repelling the second contention also, canvassed on behalf of the appellant.      The last  contention of  the learned  Counsel  for  the appellant is  that even if the second part of clause (iv) is construed as  an allegation  that Shri Shiv Pratap Singh and others of  Umri threatened  not to  vote and  canvass,  then also, this  allegation is  so bereft  of material  facts and material particulars, that it does not constitute a complete charge of  corrupt practice  under sec. 123(2). The material facts and  material particulars,  which according to Counsel were, in view 256 of the mandate of s. 83 required to be pleaded, but have not been pleaded  are: the place where the threat was given, the kind and nature of the injury threatened, or injury, if any, actually caused,  the particulars  of the parentage, address of Shiv  Pratap Singh  and others,  the fact  that this Shiv Pratap Singh  of Umri  was the  same  who  was  one  of  the candidates at  the election  and that  the person threatened was  an   elector,  and   how  the   threat  constituted  an interference with  the free exercise of his electoral right. It  is  urged  that  in  ascertaining  whether  or  not  the allegations in  Para 11(iv)  constitute a  complete cause of action relating  to a  corrupt practice,  the Court  has  to confine  itself   to  this   Para,  and   cannot  take  into consideration even  an admission of the petitioner appearing in evidence  or in  any document  extraneous to the election petition. Support  for this  contention has been sought from the decisions  of this  Court in Sheodhan Singh v. Mohan Lal Gautam,(1) Samant  N. Balakrishna  etc. v.  George Fernandez and ors.(2) and Hardwari Lal v. Kanwal Singh(3).      As against  this, Mr.  Gupte, has  pointed out that all the material  facts, as  distinct from material particulars, necessary  to   constitute  a  complete  charge  of  corrupt practice under  s. 123(2)  against Shri Shiv Pratap Singh, a

http://JUDIS.NIC.IN SUPREME COURT OF INDIA Page 11 of 13  

candidate can  be found  in the petition if the same is read as a  whole. In  any case,  the identity of this Shiv Pratap Singh as  a candidate  was admitted by the petitioner in the particulars supplied  by him  pursuant to  an order  of  the Court on  8-8-1972.  Those  particulars,  according  to  the Counsel are  to be  treated as  a part  of the  Petitioner’s pleading. It  is further  submitted that  if  there  is  any deficiency of  particulars, as distinguishable from material facts, in  Para 11(iv),  then also  they could  be supplied, even after  the  expiry  of  limitation  for  the  petition, pursuant to  an order  of the Court, made at the instance of the respondent.  The petitioner cannot, it is stressed, take advantage of  his own  default, in  not setting  forth  full particulars of basic facts set out in the petition.      Section 83 lays down :           "(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)  ..        ..        ..        ..      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 or 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

http://JUDIS.NIC.IN SUPREME COURT OF INDIA Page 12 of 13  

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 distinction  between ’material facts’ and ’material particulars" was pointed out by this Court in several cases, three of  which have  been cited  at  the  bar.  It  is  not necessary to  refer to all of them. It will be sufficient to close the  discussion by extracting what A. N. Ray J. (as he then was) said on this point in Hardwari Lal’s case (supra):           "It is  therefore vital  that the corrupt practice      charged against  the respondent  should be  a full  and      complete statement  of material  facts  to  clothe  the      petitioner with  a complete cause of action and to give      an equal and full opportunity to the respondent to meet      the case  and to  defend the  charges. Merely, alleging      that the  respondent obtained  or procured or attempted      to obtain  or procure  assistance are  extracting words      from the  statute which will have no meaning unless and      until facts are stated to show what that 258      assistance is  and how  the  prospect  of  election  is      furthered by  such assistance.  In the present case, it      was not  even alleged  that the  assistance obtained or      procured was other than the giving of vote. It was said      by counsel  for the respondent that because the statute      did not  render the  giving of  vote a corrupt practice      the words  "any  assistance"  were  full  statement  of      material fact.  The submission  is fallacious  for  the      simple  reason  that  the  manner  of  assistance,  the      measure of  assistance are  all various aspects of fact      to clothe  the petition  with a  cause of  action which      will call for an answer. 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.  The answer  is  in  the  negative      because  the   allegations  in  the  petition  did  not      disclose any cause of action."      Bearing  in   mind  the   criteria  for  distinguishing material facts  from material  particulars, let  us now  see whether the allegations in Para 11(iv) of the petition cover all the  material facts  constituting a  complete charge  of corrupt practice  within the  meaning of sec. 123(2) against Shri Shiv Pratap Singh who was a candidate at the election.      The gist  of the  corrupt practice of "undue influence" as defined  in sub-section  (i) of  sec. 123  is "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".      By way  of illustration sub-clause (1) of clause (a) of the Proviso  lays down  that if  a person  who threatens any candidate or  any elector  or any person in whom a candidate or an  elector is  interested, with injury of any kind shall be deemed  to  interfere  with  the  free  exercise  of  the electoral right  of such  candidate or  elector  within  the meaning of sub-section (2).      In Para  11(iv) the particular corrupt practice alleged is of  the kind indicated in the aforesaid sub-clause (i) of the Proviso. Reading Para 11 as a whole, it is clear that it is pleaded  that Shri  Shiv Pratap  Singh and others of Umri

http://JUDIS.NIC.IN SUPREME COURT OF INDIA Page 13 of 13  

had administered  a threat to Shri Mohan Prasad Ojha who was a Congress  Worker and  an elector  of Umri; that the threat was not to vote for the Congress candidate, Shri Jadhav, the threat was  of causing  bodily injury  to the  said elector, that the  threatener Shri Shiv Pratap Singh, was an election worker of  the respondent and had administered the threat to the said  elector,  with  the  consent  of  the  respondent. Reading Para 11(iv) together with the contents of Para 10 of the petition,  the import  is clear that this threatener was none  else  but  "Shri  Shiv  Pratap  Singh  MLA,  s/o  Shri Birjendra Singh  r/o  Umri  House  Guna",  who  "during  the election of the respondent acted as his agent."      It will  thus be  seen that  all the  "material  facts" constituting a  complete charge of corrupt practice under s. 123(2) against  Shri Shiv  Pratap Singh  were stated  in the petition. The approximate date 259 of  administering  the  threat-which  was  only  a  material particular as  distinguished from  a material  fact-was also given. Only  the place  and the  precise time  of giving the threat were  not stated.  But  these  were,  at  best,  only material particulars, and not "material facts". The occasion for furnishing  such particulars  would have  arisen only if the respondent  had asked  for them.  Similarly, further and better particulars  of the  address etc. of Shri Shiv Pratap Singh would  fall within  the category of particulars. By an application dated  1-8-1972, the  respondent, obviously as a matter of  abundant caution, asked for fuller particulars of Shiv Pratap Singh referred to in para 11(iv). The petitioner submitted his  reply, dated  8-8-72, through  his Counsel in which he  furnished these  particulars of the said Shri Shiv Pratap Singh:           "Shiv Pratap Singh s/o Brijendra Singh, aged about      35 years,  occupation cultivation  (at  present  M.L.A.      Guna) resident of Umri House, Guna, Distt. Guna."      These particulars  supplied by  the election-petitioner were in  the nature of his supplemental pleading. They could not be treated as something extraneous to his pleading. They could be  legitimately looked  into for construing Paragraph 11(iv) of  the petition.  These  particulars supplied by the petitioner were  substantially the  same as given in Para 10 of the  petition. These  particulars  doubly  confirmed  the identity of  Shiv Pratap  Singh mentioned  in Para 11(iv) as the same person who was one of the candidates.      In  sum,   Para  11(iv)   of  the   petition  contained allegations of a complete charge of corrupt practice against a candidate, Shri Shiv Pratap Singh and consequently in view of sec.  82(b) it  was  obligatory  for  the  petitioner  to implead him,  as also,  as a  respondent failure  to do  so, would inexorably lead to the dismissal of his petition under sec. 86.      Accordingly on  this short  ground,  and  for  all  the reasons aforesaid,  we uphold  the dismissal of the election petition and disallow this appeal with costs. P.H.P.                                      Appeal dismissed 260