Prabhu Lal Bahuguna vs Umesh Sharma Kau

Lok Pal Singh, J

Instant election petition has been instituted by the election petitioner seeking a prayer to declare the election of the respondent as returned (elected)

candidate from 19-Raipur Constituency of Legislative Assembly in the IV Assembly Elections of the State of Uttarakhand to be null and void and

consequently to declare the certificate of election granted by the Returning Officer (District Development Officer), Dehradun on 11.03.2017, also null

and void.

2) Briefly stated, facts of the case are that voting took place on 15.02.2017 in respect of elections for 19-Raipur constituency of Uttarakhand

Legislative Assembly and the result was declared on 11.03.2017. The election petitioner, who is the candidate for Indian National Congress party,

submitted his nomination papers and contested the election for said constituency of Uttarakhand Legislative Assembly. Respondent also contested the

election and was declared returned candidate.

3) The election petitioner has filed the election petition, inter alia, on the grounds that the respondent was the candidate of Bhartiya Janta Party at the

time of election, which was the ruling party in the Center. It is contended that Electronic Voting Machine (EVM) with Voter Verified Paper Audit

Trail (VVPAT) machines were not installed in the election pursuant to the directions issued by Hon’ble Apex Court in its judgment rendered in the

case of Dr. Subramanian Swami Vs Election Commission of India, (2013) 10 SCC 500. After the election, several reports were published in

regard to the malfunctioning of the EVMs throughout the country. Taking advantage of the situation to introduce the EVM with VVPAT, the

respondent committed corrupt practices in collusion and connivance with their associates, whereby the respondent took help of experts under a

planned modus operandi, for tampering / hacking / manipulating the EVMs deployed at various polling booths and, as such, hampered with the free,

fair, genuine recording of votes through EVMs, which amounts to “Booth Capturingâ€​, and is an offence under Section 135A of the Representation

of People Act,1951.

4) It is alleged that having knowledge of the fact that the EVMs were found to be tempered because of the non-use of EVMs with VVPAT,

respondent with the help of persons who are specialized in manipulating and hacking computers and such other machine which need programming for

the purpose of working, computing, calculating and classifying, tampered / hacked, the EVMs at different stages of the process of the said election

and as such the respondent adopted corrupt practice and succeeded in winning the election. It is further alleged that the respondent in a pre-planned

manner with specific strategy got different EVMs tempered through technology skilled professionals to get false votes in his favour. It is stated that

some integrated parts of the EVMs are manufactured in U.S.A. or Japan and are imported and the assembling is done in the country itself giving

every chance of hacking the EVMs. The respondent has adopted corrupt practice by misusing of technology and managed to hack the EVM in such a

manner that votes casted in favour of other different candidates were added to the account of respondent.

5) After the filing of present election petition, amendment applications were moved on behalf of the Election Commission of India in instant election

petition as well as in connected election petitions with a prayer to delete the names of respondent nos. 2 to 6 from the array of parties. Such

applications were allowed on 22.08.2017. Names of respondent nos. 2 to 6 were deleted from the array of parties in the election petitions.

6) It is contended that some voters, who were not ordinary residents of Raipur constituency remained present in the Raipur and surrounding

constituencies throughout the election period / process. It is alleged that these persons manipulate the EVM’s in such a fashion that votes casted

in favour of others were wrongly credited into the account of respondent. It is further contended that by adopting corrupt practice by misusing the

technology, the respondent hacked / tempered the EVMs in such a manner that votes casted in favour of other candidates were added to the account

of respondent, which led to undue increase in the votes casted in favour of the respondent. Thus, the result of the election got affected. It is stated that

EVMs have been declared unreliable by most of the developed nations and its use was not found satisfactory for the conduct of free and fair election

by several nations. Lastly, it is contended that in view of the facts narrated in abovementioned election petitions, as also in view of the grounds raised

therein, the election of the returned candidate (respondent herein) as Members of IV Legislative Assembly of Uttarakhand from 19-Raipur

constituency is liable to be declared null and void on the grounds mentioned in the election petition.

7) An application under Order VII Rule 11 of the Code of Civil Procedure, 1908 (hereinafter referred to as ‘the Code’) was filed by the

returned candidate, stating therein, that no cause of action arose to the election petitioner and he has also not disclosed any cause of action in the

election petition. It is contended that the election petition does not comply with the provisions of Representation of People Act, 1951 or Rules made

thereunder. Hence the election petition is liable to dismissed on these counts alone.

8) Objections were filed by the election petitioner, stating therein, that affidavit of corrupt practice has been filed by the applicant in prescribed Form

no. 25 as provided under Rule 94-A of the Conduct of Election Rules, 1961 (hereinafter referred as the ‘Rules of 1961’), which was duly

affirmed and sworn before the Oath Commissioner. It is stated that apart from the ground of corrupt practice raised in the election petition, grounds A

and B have been raised in the affidavit of corrupt practice. It is also stated that the election petition is presented well within time and defects, as

pointed out by the Registry, were curable and have been removed. It is submitted that as per the provisions of Order VII Rule 11 of the Code, only the

plaint has to be seen and nothing else and the averments made in the election petition clearly discloses the cause of action to file election petition,

which still survives. It is averred that an election petition cannot be dismissed for non-compliance of Section 83 of the Representation of People Act,

1951 (hereinafter referred to as ‘the Act’). It is also averred that the election petition has been signed and all the annexures have been

appended with it.

9) Heard Mr. Arvind Vashistha, learned Senior Counsel appearing for the election petitioner & Mr. Bhupesh Kandpal, learned counsel for the

respondent and perused the entire material available on record.

10) Learned counsel appearing for the returned candidate submitted that the result of the election was declared on 11.03.2017. Though election

petition was presented in the Registry of this Court on 22.04.2017, but the Registry pointed out the following defects:

i) Page no. 47, 131 to 134, 146 to 148, 178 to 183 are not clear

ii) Page number has not been mentioned from page nos. 80 to 127 on outside.

iii) Bench copies are not according to the original copy and not verified by learned Advocate.

Election petitioner was permitted to remove the defects by 27.04.2017. However, the defects were removed on 28.04.2017 after the period of

limitation of filing the election petition.

11) Learned counsel appearing on behalf of the returned candidate would submit that if a period of 45 days within which the election petition ought to

have been filed were to be counted either from 11.03.2017 or from the date on which the election petition was presented, then the statutory period of

45 days were completed on 25.04.2017. He would further submit that since the defect of verification was cured on 28.04.2017 beyond 45 days,

therefore, the election petition, in fact, has been presented on 28.04.2017, as such, the election petition is barred by limitation and is liable to be

dismissed on this score alone. He would also submit that the copies supplied to the returned candidate have not been verified and some columns in it

are blank. Since correct copies of the election petition have not been supplied to the returned candidate, thus, the defect is incurable. It is contended

that the averments made in the election petition on corrupt practice were not filed in accordance with the Rule 25 of the Rules of 1961.

12) Learned counsel would further submit that the election petition is silent as to what cause of action has been accrued to the election petitioner to

file the said election petition. Also, the contents of the entire election petition does not disclose any cause of action as it does not contain concise

statement of the material facts on which the petitioner relies and full particulars of any corrupt practice, as alleged, are not supplied by the election

petitioner, hence the election petition which lacks in giving any material facts is liable to be dismissed at the threshold.

13) He drew attention of this Court towards the fact that an affidavit was required to be filed along with the election petition, but the election petitioner

has not filed an affidavit in the manner prescribed. A perusal of the affidavit filed in support of the election petition would depict that the election

petitioner has filed the affidavit as under:

Affidavit of Prabhu Lal Bahuguna, aged about 67 years, S/o late Shri Narayan Dutt Bahuguna, R/o Village-Pavwala Sola, Tehsil and District

Dehradun (Uttarahand).

(Deponent)

“I, the deponent above named do hereby solemnly affirm and state on oath as under:-

That the deponent is sole petitioner in the above noted election petition, as such he is well acquainted with the facts and circumstances of the case

deposed to below.

I, the deponent above named do hereby solemnly affirm on oath and verify that the contents of para no. 1 of this affidavit and para no. 1 to 33 of the

election petition are true to my personal knowledge, those of para no. and 34(p) and Ground (I) to (X) (partly) of the election petition are based on

record, those of para no. 34(p) and Ground (I) to (X) (partly) of the election petition are based on legal advice, which all I believe to be true. That no

part of this affidavit is false and nothing material has been concealed.

So help me God.

(Deponent)

14) A perusal of Form 25 would depict that the election petitioner has not submitted an affidavit of corrupt practice on Form 25 as prescribed under

the Rules of 1961. The affidavit of corrupt practice on Form 25 accompanying the election petition is extracted hereunder:

“I, Prabhu Lal Bahuguna, aged about 67 years, the petitioner in the accompanying election petition calling in question the election of Shri Umesh

Sharma Kau (respondent no. 1 in the said petition) make solemn affirmation / oath and say-

A. That the statements made in paragraphs 12 to 33 and paragraph numbers 34(I) to (X) of the accompanying election petition about the commission

of the corrupt practice of respondent no. 1, the particulars of corrupt practice of persons mentioned in paragraph no. 13 and in aforesaid other

paragraphs of the same petition and in paragraphs ______ of the Schedule annexed thereto are true to my knowledge.

B. that the statement made in paragraphs 14 of the said petition about the commission of the corrupt practice of respondent no. 1 and in paragraphs

______ of the Schedule annexed thereto are true to my information.

Solemnly affirmed / sworn by Shri Prabhu Lal Bahuguna S/o late Shri Narayan Dutt Bahuguna, aged about 68 years at Nainital this 21st day of April,

2017.

(Oath Commissioner)

15) Mr. Bhupesh Kandpal, learned counsel for the returned candidate contended that initially the election petitioner was permitted to cure the defect in

the election petition, but the same has not been done within time; and the election petition is not supported by an affidavit in prescribed Form 25. It is

also contended that neither any cause of action is mentioned in the election petition nor is there any mention of corrupt practice which requires to be

submitted in the form of affidavit. Thus, the election petitioner failed to comply with the mandatory provisions contained in Section 81 and no

compliance of Section 82 of the Rule of 1961 has been made.

16) Compliance of Section 81, 82 and 83 of Rule of 1961 and the rules made thereunder have not been made by the petitioner. Learned counsel for

the returned candidate further submitted that the election petitioner did not raise any of the grounds raised in the election petition before the Returning

Officer at the time of election or at the time of counting of votes. What has been done is that the Congress Committee of Uttarakhand on 12.03.2017

has submitted a memorandum to the Chief Election Officer, Uttarakhand, which cannot be considered as an objection filed by the election petitioner.

He has submitted that so far as tampering / hacking of EVMs is concerned, the Hon’ble Supreme Court has affirmed that EVMs cannot be

tempered, hacked or manipulated. Manipulation in the EVM has been challenged before the Hon’ble Apex Court, but the Hon’ble Apex Court

has declined to interfere in the matter to conduct the elections through EVMs. He further submitted that as no cause of action arose to the election

petitioner, the election petition is liable to be dismissed on this ground alone. Lastly it is contended that since the procedure prescribed in filing the

election petition has not been complied with, thus the election petition is liable to be dismissed at the threshold.

17) Verification of pleading has been defined in Rule 15 of Order 5 of the Code. Order VII Rule 11 of the Code stipulates that a suit or petition may

be rejected in following contingencies:

“11. Rejection of plaintâ€" The plaint shall be rejected in the following cases:â€

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

(b) where the relief claimed is undervalued, and the plaintiff, on being required by the Court to correct the valuation within a time to be fixed by the

Court, fails to do so;

(c) where the relief claimed is properly valued, but the plaint is returned upon paper insufficiently stamped, and the plaintiff, on being required by the

Court to supply the requisite stamp-paper within a time to be fixed by the Court, fails to do so;

(d) where the suit appears from the statement in the plaint to be barred by any law;

(e) where it is not filed in duplicate;

(f) where the plaintiff fails to comply with the provisions of Rule 9;

[Provided that the time fixed by the Court for the correction of the valuation or supplying of the requisite stamp-paper shall not be extended unless the

Court, for reasons to be recorded, is satisfied that the plaintiff was prevented by any cause of an exceptional nature form correcting the valuation or

supplying the requisite stamp-paper, as the case may be, within the time fixed by the Court and that refusal to extend such time would cause grave

injustice to the plaintiff.]â€​

18) It would also be apt to reproduce here Sections 81, 82 and 83 of the Rules of 1961. The same are extracted hereunder:

“81. Presentation of petitions. â€" (1) An election petition calling in question any election may be presented on one or more of the grounds specified

in [sub-section (1) ] of Section 100 and Section 101 to the [High Court] by any candidate at such election or any elector [within forty-five days from,

but not earlier than the date of election of the returned candidate or if there are more than one returned candidate at the election and dates of their

election are different, the later of those two dates].

Explanation. â€"In this sub-section, “elector†means a person who was entitled to vote at the election to which the election petition relates,

whether he has voted at such election or not.

(2) [Omitted]

(3) Every election petition shall be accompanied by as many copies thereof as there are respondents mentioned in the petition and every such copy

shall be attested by the petitioner under his own signature to be a true copy of the petition.

Sections 82 of the Rules of 1961 provides as under:

“82. Parties of the petition. â€"A petitioner shall join as respondents to his petition â€

(a) where the petitioner, in additional to claiming declaration that the election of all or any of the returned candidates is void, claims a further

declaration that he himself or any other candidate has been duly elected, all the contesting candidates other than the petitioner, and where no such

further declaration is claimed, all the returned candidates; and

(b) any other candidate against whom allegations of any corrupt practice are made in the petition.â€​

Sections 83 of the Rules of 1961 stipulates as under:

“83. Contents of petition.â€"(1) An election petitionâ€

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.â€​

19) Learned counsel appearing on behalf of the returned candidate has placed reliance on the judgment of Hon’ble Apex Court in the case of

Laxmi Kant Bajpai Vs Haji Yazoob (2010) 4 SCC 81, wherein it has been held that the courts cannot decide any issue relating to issuance or revision

of an electoral roll. The remedy lies in the procedure laid down in the prescribed rules. There is scope for challenging the contents of the electoral roll.

However, once an electoral roll is finally published, it becomes final and then no court can interfere with the said publication of the electoral roll and it

shall be the electoral roll of the constituency. The Hon’ble Apex Court having considered catena of judgments has held that the finality of the

electoral roll cannot be challenged in an election petition even if certain irregularities had taken place in the preparation of the electoral roll or if

subsequent disqualification had taken place and the electoral roll had on that score (cannot be) corrected before the last hour of making nominations.

20) Further reliance has been placed in R.P. Moidutty Vs P.T. Kunju Mohammad & another (2000) 1 SCC 481, wherein the Hon’ble Supreme

Court has held that the defect in verification of the petition is curable â€" but failure to cure the defect would be fatal. On the strength of said

judgment it is contended that having considered catena of judgments (Murarka Radhey Shyam Ram Kumar Vs Roop Singh Rathore, AIR 1964 SC

1545 and A.S. Subbaraj Vs M. Muthiah, 5 ELR 2)1, the Hon’ble Apex Court has held that the defect of verification of the election petition is

curable, but non-removal of the defect would be fatal. It has been further held that the affidavit filed in support of the election petition as required by

Rule 94-A also does not satisfy the requirement of the proviso to sub-section (1) of Section 83 of the Act and Form 25 appended to the Rule. Several

averments relating to commission of corrupt practice by the first respondent as contained in Paragraphs 4 to 12 and 16 of the petition have been

verified as true to the best of “my knowledge and information†â€" both, without specifying which of the allegations were true to the personal

knowledge of the petitioner and which of the allegations were based on the information of the petitioner believed by him to be true. Neither the

verification in the petition nor the affidavit given any indication of the source of information of the petitioner as to such facts as were not in his own

knowledge. The verification of the petition does not even satisfy the requirement of Order 6 Rule 15 of the Code. The verification reads as under:

“VERIFICATION

“I, R.P. Moidutty s/o Abubakker Haji, aged 54, petitioner in the above election petition do hereby declare that the averments in paras 1 to 17 are

true and made from personal knowledge and on the basis of personal enquiry I believe that all the averments made in paras 1 to 17 are true.

Signed and verified on this the 21st day of June,1996.

sd/-

Petitionerâ€​

It has been further held that defect in verification was pointed out by raising a plea in that regard. The objection was pressed and pursued by arguing

the same before the Court. However, the petitioner persisted in pursuing the petition without proper verification which the petitioner should not have

been permitted to do. Unless the defect in verification was rectified, the petition could not have been tried. For want of affidavit in the required form

and also for lack of particulars, the allegations of corrupt practice could not have been enquired into and tried at all. Thus, it is a fit case where the

petition should have been rejected at the threshold for non-compliance of the mandatory provisions of law as to the pleadings.

Effect of non-compliance of Section 83 in filing the election petition:

21) Section 83 of the Act stipulates that an election petition shall contain a concise statement of the material facts on which the petitioner relies; 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 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 and file an affidavit of corrupt practice on Form

25 on prescribed form.

22) An application was filed by the returned candidate alleging that the election petition has not been verified in consonance with the provisions

contained in Order 6 rule 15 of the Code; an affidavit filed for alleged corrupt practice has not been filed in consonance of Rule 94-A on Form 25 of

the Rules of 1961. Despite the points raised by the returned candidate, the petitioner did not make any effort to remove the defect of verification of

pleadings of election petition and failed to file an affidavit on proper Form 25 of the Rules of 1961. The purpose of verification of pleading is that a

person, who verify the pleadings be held responsible for any statement of verification of the pleadings otherwise there will be no purpose of

verification of the pleadings. Furthermore, an affidavit which has not been filed on Form 25 though is not much relevant, but the fact remains that the

law laid down by the Hon’ble Apex Court in Singhara Singh (State of U.P. Vs Singhara Singh & others AIR 1964 Supreme Court 358,) stipulates

that if a statute has conferred a power to do an act and has laid down the method in which that power has to be exercised, it necessarily prohibits the

doing of the act in any other manner than that which has been prescribed.

23) A person who had contested the election of Legislative Assembly or the election of Member of Parliament and thereafter files an election petition

cannot be considered as a layman. A candidate contesting the election of Legislative Assembly or Member of Parliament is considered to be a

prudent person.

24) A perusal of the verification clause of election petition would reveal that statement has been made that the contents of para no. 1 of this affidavit

and para no. 1 to 33 of the election petition are true to the personal knowledge, those para no. 34(p) and Grounds (I) to (X) partly of the election

petition are based on record and on legal advice.

25) Having gone through the affidavit of corrupt practice, paragraphs no. 12 to 33 and paragraphs no. 34(I) to (X) of the accompanying election

petition about the commission of corrupt practice of the respondent and paragraph no. 14 are said to have been verified from personal knowledge and

information.

26) A comparison of the election petition would reveal that though in the affidavit of corrupt practice paragraphs no. 34(I) to (X) have been said to be

in personal knowledge, whereof there are no paragraphs no. 34(I) to X in the election petition. Thus, the election petitioner not only made a defective

verification, rather he has made a written verification of the corrupt practice without there being such paragraphs as has been verified in regard to the

corrupt practice. Such an affidavit of corrupt practice is not an affidavit in the eyes of law and is liable to be thrown straight away. The case of the

election petitioner is based on the alleged corrupt practice as mentioned in the preceding paragraphs, but the same has not been verified properly. A

further perusal of the said paragraphs would reveal that the election petitioner has emphasized his allegations of corrupt practice of tempering of

EVMs. However, there is no information placed on record by verifying the said paragraphs of corrupt practice as to from whom the election petitioner

has received such information.

27) Hon’ble Apex Court in the cases of R.P. Moidutty Vs P.T. Kunju Mohammad & another (2000) 1 SCC 481 and Laxmikant Bajpai Vs Haji

Yazoob (2010) 4 SCC 81 has categorically held that the purpose of verification of election petition is to make the election petitioner responsible for the

verification clause. Since despite opportunity being granted to remove the defect on filing the application by the returned candidate, the election

petitioner did not cure the defect of verification of the election petition, affidavit filed in support thereof and defect in the affidavit of corrupt practice,

rather an incorrect affidavit has been filed by the election petitioner. Thus, the net effect of improper verification of the election petition and non-filing

of the correct affidavit of corrupt practice on prescribed format as well as improper verification of the averments of the election petition are fatal, as

such, the election petition is liable to be dismissed on this score alone.

Effect of non-mentioning the corrupt practice as contemplated in Section 2(c) and Section 123 of the Act.

28) Section 2 of the Act is about interpretation. Section 2(c) of the Act stipulates as under:

“2. (1) In this Act, unless the context otherwise requires. â€

(a) ….

(b) ….

(bb) ….

(c) “corrupt practiceâ€​ means any of the practices specified in Section 123.â€​

29) Section 123 of the Act reads as under:

“123. Corrupt practices.â€"The following shall be deemed to be corrupt practices for the purposes of this Act:â€

[(1) ""Bribery"", that is to sayâ€

(A) any gift, offer or promise by a candidate or his agent or by any other person with the consent of a candidate or his election agent of any

gratification, to any person whomsoever, with the object, directly or indirectly of inducingâ€

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

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

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

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

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

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

(b) by any person whomsoever for himself or any other person for voting or refraining from voting, or inducing or attempting to induce any elector to

vote or refrain from voting, or any candidate [to withdraw or not to withdraw] his candidature.

Explanation.â€"For the purposes of this clause the term ""gratification"" is not restricted to pecuniary gratifications or gratifications estimable in money

and it includes all forms of entertainment and all forms of employment for reward but it does not include the payment of any expenses bona fide

incurred at, or for the purpose of, any election and duly entered in the account of election expenses referred to in section 78.]

(2) Undue influence, that is to say, any direct or indirect interference or attempt to interfere on the part of the candidate or his agent, or of any other

person [with the consent of the candidate or his election agent], with the free exercise of any electoral right:

Provided thatâ€

(a) without prejudice to the generality of the provisions of this clause any such person as is referred to therein whoâ€

(i) threatens any candidate or any elector, or any person in whom a candidate or an elector is interested, with injury of any kind including social

ostracism and ex-communication or expulsion from any caste or community; or

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

an object of divine displeasure or spiritual censure, shall be deemed to interfere with the free exercise of the electoral right of such candidate or

elector within the meaning of this clause;

(b) a declaration of public policy, or a promise of public action, or the mere exercise of a legal right without intent to interfere with an electoral right,

shall not be deemed to be interference within the meaning of this clause.

[(3) The appeal by a candidate or his agent or by any other person with the consent of a candidate or his election agent to vote or refrain from voting

for any person on the ground of his religion, race, caste, community or language or the use of, or appeal to religious symbols or the use of, or appeal to,

national symbols, such as the national flag or the national emblem, for the furtherance of the prospects of the election of that candidate or for

prejudicially affecting the election of any candidate:

[Provided that no symbol allotted under this Act to a candidate shall be deemed to be a religious symbol or a national symbol for the purposes of this

clause.]

(3A) The promotion of, or attempt to promote, feelings of enmity or hatred between different classes of the citizens of India on grounds of religion,

race, caste, community, or language, by a candidate or his agent or any other person with the consent of a candidate or his election agent for the

furtherance of the prospects of the election of that candidate or for prejudicially affecting the election of any candidate.]

[(3B) The propagation of the practice or the commission of sati or its glorification by a candidate or his agent or any other person with the consent of

the candidate or his election agent for the furtherance of the prospects of the election of that candidate or for prejudicially affecting the election of any

candidate.

Explanation.â€"For the purposes of this clause, ""sati"" and ""glorification"" in relation to sati shall have the meanings respectively assigned to them in the

Commission of Sati (Prevention) Act, 1987 (3 of 1988).]

(4) The publication by a candidate or his agent or by any other person [with the consent of a candidate or his election agent], of any statement of fact

which is false, and which he either believes to be false or does not believe to be true, in relation to the personal character or conduct of any candidate,

or in relation to the candidature, or withdrawal, of any candidate, being a statement reasonably calculated to prejudice the prospects of that candidate's

election.

(5) The hiring or procuring, whether on payment or otherwise, of any vehicle or vessel by a candidate or his agent or by any other person [with the

consent of a candidate or his election agent], [or the use of such vehicle or vessel for the free conveyance] of any elector (other than the candidate

himself, the members of his family or his agent) to or from any polling station provided under section 25 or a place fixed under sub-section (1) of

section 29 for the poll:

Provided that the hiring of a vehicle or vessel by an elector or by several electors at their joint costs for the purpose of conveying him or them to and

from any such polling station or place fixed for the poll shall not be deemed to be a corrupt practice under this clause if the vehicle or vessel so hired is

a vehicle or vessel not propelled by mechanical power:

Provided further that the use of any public transport vehicle or vessel or any tramcar or railway carriage by any elector at his own cost for the

purpose of going to or coming from any such polling station or place fixed for the poll shall not be deemed to be a corrupt practice under this clause.

Explanation.â€"In this clause, the expression ""vehicle"" means any vehicle used or capable of being used for the purpose of road transport, whether

propelled by mechanical power or otherwise and whether used for drawing other vehicles or otherwise.

(6) The incurring or authorizing of expenditure in contravention of section 77.

(7) The obtaining or procuring or abetting or attempting to obtain or procure by a candidate or his agent or, by any other person 1 [with the consent of

a candidate or his election agent], any assistance (other than the giving of vote) for the furtherance of the prospects of that candidate's election, 2

[from any person whether or not in the service of the Government] and belonging to any of the following classes, namely:â€

(a) gazetted officers;

(b) stipendiary judges and magistrates;

(c) members of the armed forces of the Union;

(d) members of the police forces;

(e) excise officers;

[(f) revenue officers other than village revenue officers known as lambardars, malguzars, patels, deshmukhs or by any other name, whose duty is to

collect land revenue and who are remunerated by a share of, or commission on, the amount of land revenue collected by them but who do not

discharge any police functions; and]

(g) such other class of persons in the service of the Government as may be prescribed:

[(h) class of persons in the service of a local authority, university, government company or institution or concern or undertaking appointed or deputed

by the Election Commission in connection with the conduct of elections.]

[Provided that where any person, in the service of the Government and belonging to any of the classes aforesaid, in the discharge or purported

discharge of his official duty, makes any arrangements or provides any facilities or does any other act or thing, for, to, or in relation to, any candidate

or his agent or any other person acting with the consent of /the candidate or his election agent (whether by reason of the office held by the candidate

or for any other reason), such arrangements, facilities or act or thing shall not be deemed to be assistance for the furtherance of the prospects of that

candidate's election;]

[(8) booth capturing by a candidate or his agent or other person.]

Explanation.â€"(1) In this section, the expression ""agent"" includes an election agent, a polling agent and any person who is held to have acted as an

agent in connection with the election with the consent of the candidate.

(2) For the purposes of clause (7), a person shall be deemed to assist in the furtherance of the prospects of a candidate's election if he acts as an

election agent of that candidate.]

[(3) For the purposes of clause (7), notwithstanding anything contained in any other law, the publication in the Official Gazette of the appointment,

resignation, termination of service, dismissal or removal from service of a person in the service of the Central Government (including a person serving

in connection with the administration of a Union territory) or of a State Government shall be conclusive proofâ€

(i) of such appointment, resignation, termination of service, dismissal or removal from service, as the case may be, and

(ii) where the date of taking effect of such appointment, resignation, termination of service, dismissal or removal from service, as the case may be, is

stated in such publication, also of the fact that such person was appointed with effect from the said date, or in the case of resignation, termination of

service, dismissal or removal from service, such person ceased to be in such service with effect from the said date.]

[(4) For the purposes of clause (8), ""booth capturing"" shall have the same meaning as in section 135A.]â€​

30) A perusal of the definition of corrupt practice as envisaged in Section 123 of the Act and further perusal of the grounds of corrupt practice alleged

in the election petition would reveal that none of the grounds as envisaged in Section 123 of the Act is averred in the election petition. If the election

petitioner could make out a ground as per the definition of corrupt practice envisaged in Section 123 of the Act only that can give a cause of action to

the election petitioner to file election petition on the grounds of alleged corrupt practice. Mere alleging that the returned candidate has adopted the

corrupt practice is not sufficient. There should be a material foundation and pleadings for such an alleged corrupt practice adopted by the returned

candidate. A perusal of the election petition in its entirety and on comparing with the grounds of corrupt practice as envisaged in Section 123 of the

Act would reveal that neither is there any allegation of such corrupt practice, nor the allegations made in the election petition have been properly

verified by the election petitioner nor any cause of action is averred in the election petition.

31) An election petition or suit should continue if there is some substance in the grounds raised in an election petition or suit. Since the election

petitioner did not lead any ground of election petition and applying the principle that no evidence can be looked into beyond the pleadings, this Court is

of the view that such an election petition should be curbed at the threshold. Hon’ble Apex Court in Bondar Singh & others Vs Nihal Singh &

others (2003) 4 SCC 161, has categorically held that no evidence beyond pleadings could be looked into. Though, this Court should not embark upon

the merit of the election petition as to whether the election petitioner would succeed on merit or not, but this Court cannot lose sight of the fact that if,

prima facie, the election petition which has been filed merely on the allegation of corrupt practice and no allegation of corrupt practice is found in view

of the provisions contained in Section 123 of the Act, this Court feels that continuance of such election petition on frivolous ground should be nipped at

the bud without waiting for evidence in the matter and in order to save the valuable time of the Court. Neither any ground of corrupt practice is found

in the election petition, nor has any cause of action been averred in the election petition.

32) The election petitioner nowhere in the election petition has stated that he has a cause of action to institute the election petition on the alleged

ground of corrupt practice. It is not a case of non-disclosing the complete details of cause of action, rather it is a case of non-disclosure of cause of

action.

33) Order VII Rule 11 of the Code stipulates that a suit or election petition should be dismissed at the threshold if it does not disclose the cause of

action. This Court is surprised to read the contents of election petition that too by the election petitioner, who is a prudent person, and also the fact that

the election petition has been filed through counsel as there is not a single whisper in the election petition in regard to giving a cause of action to the

election petitioner.

34) In the absence of cause of action, an election petition cannot survive. The law is well settled that while considering an application under Order VII

Rule 11 of the Code, the court has to examine the averments in the plaint and the pleas taken by the defendant in the written statement would be

irrelevant. Hon’ble Supreme Court having considered a catena of judgments, has held in the case of Bahu Ram Vs Janak Singh and others (2012)

8 SCC 701, as under:

“15. The law has been settled by this Court in various decisions that while considering an application under Order VII Rule 11 CPC, the court has

to examine the averments in the plaint and the pleas taken by the defendant in the written statements would be irrelevant. [vide C. Natrajan v. Ashim

Bai and Anr., (2007) 14 SCC 183; Ram Prakash Gupta v. Rajiv Kumar Gupta and Ors., (2007) 10 SCC 59 H; ardesh Ores (P) Ltd. v. Hede and Co.

(2007) 5 SCC 614; Mayar (H.K.) Ltd. and Ors. v. Vessel M.V. Fortune Express and Ors. (2006) 3 SCC 100 ;Sopan Sukhdeo Sable and Ors. v.

Assistant Charity Commissioner and Ors., (2004) 3 SCC 137 and Saleem Bhai and Ors. v. State of Maharashtra and Ors., (2003) 1 SCC 557.] The

above view has been once again reiterated in the recent decision of this Court in Church of Christ Charitable Trust & Educational Charitable Society

v. Ponniamman Educational Trust, (2012) 8 SCC 706.â€​

35) Thus, if a suit or election petition does not disclose cause of action, the same should be thrown at the threshold at the stage of deciding an

application filed under Order VII Rule 11 of the Code. This Court need not to consider any objection raised by the respondent in an application or

written statement. This Court has to consider only the averments of the election petition. On a careful perusal of the averments of election petition it

transpires that the election petitioner did not led any point disclosing the cause of action, thus this Court is of the firm view that the petitioner failed to

disclose any cause of action and in view of the dictum of Hon’ble Supreme Court in the judgment (supra), the election petition is liable to be

dismissed at the threshold. Though there are contradictory judgments in regard to the filing of defective verification in pleadings and to the effect that

if an affidavit of corrupt practice is not filed on Form 25, the same is not fatal. If this Court may leave the fact of non-verification of pleadings, non-

filing of a proper affidavit of corrupt practice of Form 25, this election petition is liable to be dismissed on the sole score of non-disclosing the cause of

action. However, without taking into consideration the defect of improper verification of election petition and wrongly, improperly and illegally verifying

the affidavit of corrupt practice, this election petition is liable to be dismissed at the threshold.

36) In C.P. John Vs Babu M. Palissery & others (2014) 10 SCC 54,7 the Hon’ble Apex Court on conspectus reading of section 83(1)(a) read

along with other proviso of the Act, as well as Rule 94-A and Form 25 of the Rules makes the legal position clear that in the filing of an election

petition challenging the successful election of a candidate, the election petitioner should take extra care and leave no room for doubt while making any

allegation of corrupt practice indulged in by the successful candidate and that he cannot be later on heard to state that the allegations were generally

spoken to or as discussed sporadically and on the basis the petition came to be filed. In other words, unless and until the election petitioner comes

forward with a definite plea of his case that the allegation of corrupt practice is supported by legally acceptable material evidence without an iota of

doubt as to such allegation, the election petition cannot be entertained and will have to be rejected at the threshold. It will be relevant to state that since

the successful candidate in an election has got the support of the majority of the voters who cast their votes in his favour, the success gained by a

candidate in a public election cannot be allowed to be called in question by any unsuccessful candidate by making frivolous and baseless allegation and

thereby unnecessarily dragging the successful candidate to the court proceedings and make waste of his precious time which would have otherwise

been devoted for the welfare of the members of said constituency. Therefore, while deciding the issue raised, we wish to keep in mind the above lofty

ideas with which the provisions contained in Section 83(1) read along with Rule 86 came to be incorporated while deciding the case.

37) The Hon’ble Apex Court in R.K. Roja Vs U.S. Rayudu and another (2016) 14 SCC 27,5 has held that once an application is filed under Rule

11 of Order VII of the Code, the Court has to dispose of the same before proceeding with the trial. There is no point or sense in proceeding with the

trial of the case, in case the plaint (election petition in the present case) is only to be rejected at the threshold.

38) Hon’ble Apex Court in the case of Sopan Sukhdeo Sable Vs Asstt. Charity Commissioner (2004) 3 SCC 137 h,as held that the provisions of

Rule 11 of Order VII of the Code can be invoked at any stage. A perusal of the petition would further reveal that no cause of action is mentioned in

the election petition.

39) The purpose of enactment of the provisions of Rule 11 of Order VII of the Code to reject the plaint or election petition at the earliest stage is so

that it may not waste the valuable time of the Court and not to drag the opposite party in a vexatious litigation. Apart from the money, the time is

essential and important for everyone either it is a litigant or the Court. The Parliament in its wisdom, considering the fact that vexatious claims / cases

are being filed in the court of law for ulterior motive like blackmailing, extortion, popularity and sometimes to compel the opposite party to enter into

compromise and other such purposes and to stop such practice, the provisions of Rule 11 of Order VII of the Code and Section 35B of the Code have

been made.

40) Having heard learned counsel for the parties and after perusal of the material available on record it is apparent that the election petitioner though

has cured the defect of verification on 28.04.2017, after 45 days, and the election petition only can be deemed to be instituted on the date the defects

were cured. Besides this, a perusal of paragraphs no. 1 to 33 of the election petition would depict that the election petitioner has nowhere mentioned

that any cause of action arose to him to file the election petition. Thus the petitioner does not disclose any cause of action as mandated in sub-rule 1A

of Rule 11 of Order VII of the Code.

41) A perusal of the affidavit filed in support of the election petition depicts that the affidavit in support of the election petition is not in the manner

prescribed under Rule 94 on Form 25. Application under Order VII Rule 11 of the Code was filed by the returned candidate and election petitioner

was apprised that he has not filed an affidavit of corrupt practice and has not verified the pleadings of the election petition as per the provisions

contained in Order 6 Rule 15 of the Code, but the petitioner has not made any attempt to cure the defect of filing an affidavit of verification of the

pleadings as required in Form 25. Instead of curing the defects as pointed out by the respondent, the election petitioner has emphasized his submissions

by filing objections against the application filed by respondent. It appears that the election petitioner despite opportunity being granted to him did not

cure the defect as mandated by Rule 94 on specified Form 25 and the verification as mandated in Order 6 Rule 15 of the Code. Neither there is a

cause of action mentioned in the election petition nor have the defects pointed out by the respondent been cured.

42) In the case of G.M. Siddeshwar Vs Prasanna Kumar (2013) 4 SCC 73,6 rendered by the Three Judges Bench of Hon’ble Apex Court, it has

been held as under:

The issue having been considered several times by this Court must now be allowed to rest at that.

What is an election petition:

However, another aspect of this contention is that if the provisions of Section 83 of the Act are not complied with, then the election petition that

has been filed cannot truly be described as an election petition.

In Murarka Radhey Shyam Ram Kumar v. Roop Singh Rathore & Or.s [1963] 3 SCR 573, the Cons(cid:20)tu(cid:20)on Bench dealt with the issue whether non-

compliance with the proviso to Sec(cid:20)on 83(1) of the Act was fatal to the maintainability of an elec(cid:20)on pe(cid:20)(cid:20)on wherein allega(cid:20)ons of corrupt prac(cid:20)ces were

made. It was urged that the affidavit in respect of corrupt prac(cid:20)ces which accompanied the elec(cid:20)on pe(cid:20)(cid:20)on was neither properly made nor in the prescribed

form. A different facet of this argument was that an elec(cid:20)on pe(cid:20)(cid:20)on must comply with the provisions of Sec(cid:20)on 83 thereof and if it did not, then it could not be

called an election petition.

The Constitution Bench agreed with the Election Tribunal that a defect in the verification of an affidavit “cannot be a sufficient ground for

dismissal of the petitioner's petition summarily, as the provisions of Section 83 are not necessarily to be complied with in order to make a petition valid

and such affidavit can be allowed to be filed at a later stage also.†In other words, non-compliance with the proviso to Section 83(1) of the Act was

not ‘fatal’ to the maintainability of an election petition and the defect could be remedied. It would follow that if an election petition did not

comply with the proviso to Section 83(1) of the Act, it would still be called an election petition.

The broad principle laid down in Murarka was somewhat restricted by another Constitution Bench decision rendered in Ch. Subba Rao v.

Member, Election Tribunal, Hyderabad [1964] 6 SCR 213. In that case, the Constitution Bench introduced two clear principles: firstly, that “if there is a

total and complete non compliance with the provisions of Section 81(3), the election petition might not be “an election petition presented in accordance with

the provisions of this partâ€​ within Section 80 of the Actâ€​ and secondly, that “if there is a substantial compliance with the requirement of Section 81(3), the

election petition cannot be dismissed by the Tribunal under Section 90(3).â€​

In T.M. Jacob v. C. Poulose & Ors., (1999) 4 SCC 274 this Court reiterated the doctrine of substan(cid:20)al compliance as men(cid:20)oned in Murarka Radhey

Shyam Ram Kumar and Ch. Subba Rao and also introduced the doctrine of curability on the principles contained in the CPC. It was held that the defect in the

affidavit in that case was curable and was not of such a fatal nature as to attract dismissal of the election petition at the threshold.

The doctrine of substantial compliance as well as the doctrine of curability were followed in V. Narayanaswamy v. C.P. Thirunavukkarasu, (2000)

2 SCC 294. This Court held that a defect in verifica(cid:20)on of an affidavit is not fatal to the elec(cid:20)on pe(cid:20)(cid:20)on and it could be cured. Following Moidu(cid:62)y it was held

that if the elec(cid:20)on pe(cid:20)(cid:20)on falls foul of Order VI Rule 16 and Order VII Rule 11 of the CPC and does not disclose a cause of ac(cid:20)on then it has to be rejected at the

threshold.

Somewhat more recently, in Anil Vasudev Salgaonkar v. Naresh Kushali Shigaonkar, (2009) 9 SCC 310 this Court reiterated this posi(cid:20)on in law and

held:

“The position is well settled that an election petition can be summarily dismissed if it does not furnish the cause of action in exercise of the power

under the Code of Civil Procedure. Appropriate orders in exercise of powers under the Code can be passed if the mandatory requirements enjoined

by Section 83 of the Act to incorporate the material facts in the election petition are not complied with.â€​

43) In Ashraf Kokkur Vs K.V. Abdul Khader and others (2015) 1 SCC 129 it has been held by Hon’ble Apex Court that the annexures to the

election petition forms an integral part of the election petition. Only a concise statement of material fact is required and no material fact required to be

pleaded. Paragraphs 15 and 18 of the judgment are extracted hereunder:

“15. The question whether a schedule or annexures to the election petition is an integral part of the election petition was first discussed by this

Court in Sahodrabai Rai v. Ram Singh Aharwar, AIR 1968 SC 1079. It was held that a schedule or an annexure which is merely an evidence in the

case and included only for the sake of adding strength to the petitioner, does not form an integral part of the election petition. It was a case where the

annexures were not verified by the election petitioner as required under Section 83(2) of the RP Act. The question raised in Sahodrabai Rai case

(supra) was:

“3….Whether the election petition is liable to be dismissed for contravention of Section 81(3) of The Representation of the People Act, 1951 as

copy of Annexure-A to the petition was not given along with the petition for being served on the respondents?’

The issue was again considered by this Court in M. Kamalam v. Dr. V.A. Syed Mohammed, (1978) 2 SCC 659. Paragraph 5 of the said judgment

reads as follows:

“5. Now, the first question which arises is as to what constitutes an election petition for the purpose of Section 81 sub-section (3). Is it confined

only to election petition proper or does it also include a schedule or annexure contemplated in sub-section (2) of Section 83 or a supporting affidavit

referred to in the proviso to Section 83 sub-section (1)? To answer this question, we must turn to Section 83 which deals with contents of an election

petition. Sub-section (1) of that section sets out what an election petition shall contain [pic] and provides that it 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. The proviso requires that where the petitioner

alleges any corrupt practice, the election 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. The context in which the proviso occurs clearly suggests that the affidavit is intended to be regarded as

part of the election petition. Otherwise, it need not have been introduced in a section dealing with contents of an election petition nor figured as a

proviso to a sub-section which lays down what shall be the contents of an election petition. Sub-section (2) also by analogy supports this inference. It

provides that any schedule or annexure to an election petition shall be signed by the petitioner and verified in the same manner as an election petition.

It is now established by the decision of this Court in Sahodrabai Rai v. Ram Singh Aharwar that sub-section (2) applies only to a schedule or annexure

which is an integral part of the election petition and not to a schedule or annexure which is merely evidence in the case but which is annexed to the

election petition merely for the sake of adding strength to it. The scope and ambit of sub-section (2) was explained in the following words by

Hidayatullah, J., speaking on behalf of the Court in Sahodrabai case at SCR pp. 19-20:

“12. …We are quite clear that sub-section (2) of Section 83 has reference not to a document which is produced as evidence of the averments of

the election petition but to averments of the election petition which are put, not in the election petition but in the accompanying schedules or annexures.

We can give quite a number of examples from which it would be apparent that many of the averments of the election petition are capable of being put

as schedules or annexures. For example, the details of the corrupt practice there in the former days used to be set out separately in the schedules and

which may, in some cases, be so done even after the amendment of the present law. Similarly, details of the averments too compendious for being

included in the election petition may be set out in the schedules or annexures to the election petition. The law then requires that even though they are

outside the election petition, they must be signed and verified, but such annexures or schedules are then treated as integrated with the election petition

and copies of them must be served on the respondent if the requirement regarding service of the election petition is to be wholly complied with. But

what we have said here does not apply to documents which are merely evidence in the case but which for reasons of clarity and to lend force to the

petition are not kept back but produced or filed with the election petitions. They are in no sense an integral part of the averments of the petition but are

only evidence of those averments and in proof thereof.†It would, therefore, be seen that if a schedule or annexure is an integral part of the election

petition, it must be signed by the petitioner and verified, since it forms part of the election petition. The subject-matter of sub-section (2) is thus a

schedule or annexure forming part of the election petition and hence it is placed in Section 83 which deals with contents of an election petition. …â€​

(Emphasis supplied)

All the annexures attached to the election petition in the present case have been signed and verified by the election petitioner as per the

requirement under Section 83(2) of the RP Act, as can be seen from Annexure- P1(Colly). Therefore, Annexure-P1(d) to the election petition

(Annexure-D herein) forms an integral part of the election petition. There is a clear and unambiguous plea that the respondent was holding the post of

Kerala State Wakf Board, holding an office of profit under the Government of Kerala and, hence, he was disqualified.

Annexure-D is referred at Paragraph-5 of the election petition, which reads as follows:

“5. Even so, the first Respondent submitted his nomination before the Returning Officer in the said Constituency. Objection was taken that the first

Respondent was disqualified to be chosen to fill the seat under the Constitution of India. But the same was rejected by the Returning Officer without

any application of Mind. A copy of the order is produced herewith and marked as Annexure C, the date shown therein has been corrected as

29.3.2011, while its English translation is produced herewith and marked as Annexure C1 and the objection submitted by the petitioner with the

forwarding letter is produced and marked as Annexure D.â€​

44) Hon’ble Apex Court in V. Narayanswamy Vs C.P. Thirunavukkarasu (2000) 2 SCC 294 has held that the election petition must disclose

cause of action. A petition must be considered as a whole. It cannot be dissected in several parts and a part of it cannot be rejected on ground of non-

disclosure of cause of action. Paragraphs 23, 26 and 27 of the judgment are excerpted hereunder:

It will be thus seen that an election petition is based on the rights, which are purely the creature of statute, and if the statute renders any particular

requirement mandatory, the court cannot exercise dispensing powers to waive non-compliance. For the purpose of considering a preliminary objection

as to the maintainability of the election petition the averments in the petition should be assumed to be true and the court has to find out whether these

averments disclose a cause of action or a triable issue as such. Sections 81, 83(1)(c) and 86 read with Rule 94-A of the Rules and Form 25 are to be

read conjointly as an integral scheme. When so read if the court finds non-compliance it has to uphold the preliminary objection and has no option

except to dismiss the petition. There is difference between ""material facts"" and ""material particulars"". While the failure to plead material facts is fatal

to the election petition the absence of material particulars can be cured at a later stage by an appropriate amendment. ""Material facts"" mean the entire

bundle of facts, which would constitute a complete cause of action and these must be concisely stated in the election petition, i.e., clause (a) of sub-

section (1) of Section 83. Then under clause (b) of sub-section (1) of Section 83 the election petition must contain full particulars of any corrupt

practice. These particulars are obviously different from material facts on which the petition is founded. A petition levelling a charge of corrupt practice

is required by law to be supported by an affidavit and the election petitioner is obliged to disclose his source of information in respect of the

commission of corrupt practice. He must state which of the allegations are true to his knowledge and which to his belief on information received and

believed by him to be true. It is not the form of the affidavit but its substance that matters. To plead corrupt practice as contemplated by law it has to

be specifically alleged that the corrupt practices were committed with the consent of the candidate and that a particular electoral right of a person was

affected. It cannot be left to time, chance or conjecture for the court to draw inference by adopting an involved process of reasoning. Where the

alleged corrupt practice is open to two equal possible inferences the pleadings of corrupt practice must fail. Where several paragraphs of the election

petition alleging corrupt practices remain unaffirmed under the verification clause as well as the affidavit, the unsworn allegation could have no legal

existence and the Court could not take cognizance thereof. Charge of corrupt practice being quasi-criminal in nature the court must always insist on

strict compliance with the provisions of law. In such a case it is equally essential that the particulars of the charge of allegations are clearly and

precisely stated in the petition. It is the violation of the provisions of Section 81 of the Act which can attract the application of the doctrine of

substantial compliance. The defect of the type provided in Section 83 of the Act on the other hand can be dealt with under the doctrine of curability,

on the principles contained in the Code of Civil Procedure. Non- compliance with the provisions of Section 83 may lead to dismissal of the petition if

the matter falls within the scope of Order 6, Rule 16 and Order 7, Rule 11 of the Code of Civil Procedure. Where neither the verification in the

petition nor the affidavit gives any indication of the sources of information of the petitioner as to the facts stated in the petition which are not to his

knowledge and the petitioner persists that the verification is correct and affidavit in the form prescribed does not suffer from any defect the allegations

of corrupt practices cannot be inquired and tried at all. In such a case petition has to be rejected on the threshold for non- compliance with the

mandatory provisions of law as to pleadings. It is no part of duty of the court suo moto even to direct furnishing of better particulars when objection is

raised by other side. Where the petition does not disclose any cause of action it has to be rejected. Court, however, cannot dissect the pleadings into

several parts and consider whether each one of them discloses a cause of action. Petition has to be considered as a whole. There cannot be a partial

rejection of the petition.

Material facts and material particulars certainly connote two different things. Material facts are those facts which constitute the cause of action.

In a petition on the allegation of corrupt practices cause of action cannot be equated with the cause of action as is normally understood because of the

consequences that follow in a petition based on the allegations of corrupt practices. An election petition seeking a challenge to the election of a

candidate on the allegation of corrupt practices is a serious matter. If proved not only that the candidate suffers ignominy, he also suffers

disqualification from standing for election for a period that may extend to six years. Reference in this connection may be made to Section 8A of the

Act. It was for this purpose that proviso to sub- section (1) of Section 83 was inserted by Act 40 of 1961 (w.e.f. September 20, 1961) requiring filing

of the affidavit in the prescribed form where there are allegations of corrupt practice in the election petition. Filing of the affidavit as required is not a

mere formality. By naming a document as an affidavit it does not become an affidavit. To be an affidavit it has to conform not only to the form

prescribed in substance but has also to contain particulars as required by the Rules.

It is contended by Mr. Bhandare that all the material facts have been stated in the election petition and that for lack of material particulars, the

petition could not have been thrown out at the threshold. He said opportunity should have been given to the appellant to supply the material particulars.

It is really of strange proposition to advance. Till the date of the impugned judgment, appellant had persisted that the petition did not lack material

particulars and that the verification was in accordance with the Code and the affidavit in support of the corrupt practice in the form prescribed.

Admittedly, the petition lacked material particulars, verification to the petition was not in accordance with the Code and the affidavit did not conform to

the form prescribed. At the first opportunity, the respondent raised objection that the petition lacked both material facts and the material particulars

and that the verification to the petition and the affidavit were not in accordance with law. This was repeated in the miscellaneous application (Original

Application No.298/98). In the counter affidavit and in the reply to the miscellaneous application, the appellant persisted in his stand and termed the

objections raised by the respondent as irrelevant. It is not that the appellant did not have opportunity to correct his mistake which he could have easily

done in the rejoinder filed by him to the counter affidavit of the respondent or even his reply to the miscellaneous application (O.A. No. 298/98). He

had every opportunity even at that stage to supply the material particulars which admittedly were lacking and also to amend the verification and to file

the affidavit in the form prescribed but for the reasons best known to him, he failed to do so. The existence of material facts, material particulars,

correct verification and the affidavit are relevant and important when the petition is based on the allegation of corrupt practice and in the absence of

those, the Court has jurisdiction to dismiss the petition. High Court has undoubtedly the power to permit amendment of the petition for supply of better

material particulars and also to require amendment of the verification and filing of the required affidavit but there is no duty cast on the High Court to

direct suo moto the furnishing of better particulars and requiring amendment of petition for the purpose of verification and filing of proper affidavit. In

a matter of this kind the primary responsibility for furnishing full particulars of the alleged corrupt practices and to file a petition in full compliance with

the provisions of law is on the petitioner. [See in this connection Constitution Bench decision in Bhikaji Keshao Joshi & Anr. vs. Brijlal Nandlal Biyani

& Ors. (AIR 1955 SC610.â€​

45) In Virendra Nath Gautam Vs Satpal Singh & others (2007) 3 SCC 617, the Hon’ble Supreme Court has held as under:

“ 31. The expression 'material facts' has neither been defined in the Act nor in the Code. According to the dictionary meaning, 'material' means

'fundamental', 'vital', 'basic', 'cardinal', 'central', 'crucial', 'decisive', 'essential', 'pivotal', indispensable', 'elementary' or 'primary'. [Burton's Legal

Thesaurus, (Third edn.); p.349]. The phrase 'material facts', therefore, may be said to be those facts upon which a party relies for his claim or

defence. In other words, 'material facts' are facts upon which the plaintiff's cause of action or the defendant's defence depends. What particulars

could be said to be 'material facts' would depend upon the facts of each case and no rule of universal application can be laid down. It is, however,

absolutely essential that all basic and primary facts which must be proved at the trial by the party to establish the existence of a cause of action or

defence are material facts and must be stated in the pleading by the party.

In the leading case of Phillips v. Phillips, (1878) 4 QBD 127 : 48 LJ QB 135, Cotton, L.J. stated:

What particulars are to be stated must depend on the facts of each case. But in my opinion it is absolutely essential that the pleading, not to be

embarrassing to the defendants, should state those facts which will put the defendants on their guard and tell them what they have to meet when the

case comes on for trial.

In Bruce v. Odhams Press Ltd., (1936) 1 KB 697 : (1936) 1 All ER 287 (CA), Scott, L.J. referring to Phillips v. Phillips observed:

The cardinal provision in Rule 4 is that the statement of claim must state the material facts. The word 'material' means necessary for the purpose of

formulating a complete cause of action; and if any one 'material' statement is omitted, the statement of claim is bad; it is 'demurrable' in the old

phraseology, and in the new is liable to be 'struck out' under R.S.C. Order 25 Rule 4 (see Phillips v. Phillips); or 'a further and better statement of

claim' may be ordered under Rule 7.

A distinction between 'material facts' and 'particulars', however, must not be overlooked. 'Material facts' are primary or basic facts which must be

pleaded by the plaintiff or by the defendant in support of the case set up by him either to prove his cause of action or defence. 'Particulars', on the

other hand, are details in support of material facts pleaded by the party. They amplify, refine and embellish material facts by giving distinctive touch to

the basic contours of a picture already drawn so as to make it full, more clear and more informative. 'Particulars' thus ensure conduct of fair trial and

would not take the opposite party by surprise.

There is distinction between facta probanda (the facts required to be proved, i.e. material facts) and facta probantia (the facts by means of

which they are proved, i.e. particulars or evidence). It is settled law that pleadings must contain only facta probanda and not facta probantia. The

material facts on which the party relies for his claim are called facta probanda and they must be stated in the pleadings. But the facts or facts by

means of which facta probanda (material facts) are proved and which are in the nature of facta probantia (particulars or evidence) need not be set

out in the pleadings. They are not facts in issue, but only relevant facts required to be proved at the trial in order to establish the fact in issue.â€​

46) Hon’ble Apex Court in the case of G. Mallikarjunappa and another Vs Shamanur Shivashankarappa & others (2001) 4 SCC 42 8has held that

in absence of compliance of Section 83(1) or (2) of the Act and its proviso and Form 25 prescribed under Rule 94-A of the Rules of 1961, the election

petition is not liable to be dismissed in limine under Section 86(1) of the Act.

47) In Sardar Harcharan Singh Brar Vs Sukh Darshan Singh & others (2004) 11 SCC 196, Hon’ble Apex Court has observed as under:

“ In the present case, the grounds of corrupt practice and the facts necessary to formulate a complete cause of action had been stated. Even the

particulars had been given. However, if the Court felt that the particulars as given in the petition were deficient in any manner the petitioner could 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. Only the non-supply of particulars though ordered by the Court could have led to either striking off of the pleadings or refusal

to try the related instances of alleged corrupt practice.

48) Several points have been raised by the respondent that the defects of verification has not been removed by the election petitioner. All these

questions / issues are irrelevant at this stage of deciding the application under Order VII Rule 11 of the Code. What is to be considered by this Court

is as to whether the election petition discloses any cause of action, and nothing more?

49) Cause of action as averred in the election petition is excerpted hereunder:

“that the cause of action for the present election petition arose as aforesaid within the jurisdiction of this Hon’ble Court and this Hon’ble

Court has jurisdiction to entertain, hear and decide the petition.â€​

50) Having gone through the entire averments in the election petition and on perusal of the paragraph of cause of action it would depict that though

election petitioner has tried to make allegations that throughout the country the EVMs have been considered unfit for election except this nothing has

been said in regard to use of corrupt practice. Not only this, the election petitioner has not raised any objection at the time of counting of votes and

declaration of result. However, after the declaration of election result, Congress Committee of Uttarakhand on 12.03.2017 submitted a memorandum

to the Chief Election Officer, Uttarakhand with a request to keep the EVMs used in the Assembly Election for the year 2017 in Uttarakhand State in

safe custody till the disposal of the petition, if any, filed in the concerned Court in respect of manipulation in the EVMs used during election process.

Mere alleging that the applicant has cause of action to institute the election petition is not sufficient to consider the proper cause of action to institute

the election petition.

51) Having gone through the entire material available on record, this Court is of the firm view that the ground laid in the election petition cannot be

considered as a ground to challenge the fairness of the election petition and no cause of action has arisen to the election petitioner. If such election

petition is permitted to continue it would certainly amount to permitting bogus litigation.

52) It has been held by Hon’ble Apex Court in Dahiben Vs. Arvindbhai Kalyanji Bhanusali (Gajra) Dead Through L.Rs and others (2020) 7 SCC

366 as under:

“23.8 Having regard to Order VII Rule 14 CPC, the documents filed along with the plaint, are required to be taken into consideration for deciding

the application under Order VII Rule 11 (a). When a document referred to in the plaint, forms the basis of the plaint, it should be treated as a part of

the plaint.

23.9 In exercise of power under this provision, the Court would determine if the assertions made in the plaint are contrary to statutory law, or judicial

dicta, for deciding whether a case for rejecting the plaint at the threshold is made out.

23.10 At this stage, the pleas taken by the defendant in the written statement and application for rejection of the plaint 15 on the merits, would be

irrelevant, and cannot be adverted to, or taken into consideration.

23.11 The test for exercising the power under Order VII Rule 11 is that if the averments made in the plaint are taken in entirety, in conjunction with

the documents relied upon, would the same result in a decree being passed. This test was laid down in Liverpool & London S.P. & I Assn. Ltd. v.

M.V.Sea Success I & Anr., 4 which reads as :

“139. Whether a plaint discloses a cause of action or not is essentially a question of fact. But whether it does or does not must be found out from

reading the plaint itself. For the said purpose, the averments made in the plaint in their entirety must be held to be correct. The test is as to whether if

the averments made in the plaint are taken to be correct in their entirety, a decree would be passed.â€​

23.12 In Hardesh Ores (P.) Ltd. v. Hede & Co. (2007) 5 SCC 614 the Court further held that it is not permissible to cull out a sentence or a passage,

and to read it in isolation. It is the substance, and not merely the form, which has to be looked into. The plaint has to be construed as it stands, without

addition or subtraction of words. If the allegations in the plaint prima facie show a cause of action, the court cannot embark upon an enquiry whether

the allegations are true in fact. D. Ramachandran v. R.V. Janakiraman, (1999) 3 SCC 267.

23.13 If on a meaningful reading of the plaint, it is found that the suit is manifestly vexatious and without any merit, and does not disclose a right to

sue, the court would be justified in exercising the power under Order VII Rule 11 CPC.

23.14 The power under Order VII Rule 11 CPC may be exercised by the Court at any stage of the suit, either before registering the plaint, or after

issuing summons to the defendant, or before conclusion of the trial, as held by this Court in the judgment of Saleem Bhai v. State of Maharashtra,

(2003) 1 SCC 557. The plea that once issues are framed, the matter must necessarily go to trial was repelled by this Court in Azhar Hussain (supra).

23.15 The provision of Order VII Rule 11 is mandatory in nature. It states that the plaint “shall†be rejected if any of the grounds specified in

clause (a) to (e) are made out. If the Court finds that the plaint does not disclose a cause of action, or that the suit is barred by any law, the Court has

no option, but to reject the plaint.

“Cause of action†means every fact which would be necessary for the plaintiff to prove, if traversed, in order to support his right to judgment.

It consists of a bundle of material facts, which are necessary for the plaintiff to prove in order to entitle him to the reliefs claimed in the suit.â€​

53) Hon’ble Apex Court in Raghwendra Sharan Singh Vs. Ram Prasanna Singh (Dead) by Lrs AIR 2019 Supreme Court 143 h0as held that the

relevant facts which need to be looked into for deciding the application are the averments of the plaint only. If on an entire and meaningful reading of

the plaint, it is found that the suit is manifestly vexatious and meritless in the sense of not disclosing any right to sue, the court should exercise power

under Order 7 Rule 11 CPC. It has been further held that the averments of the plaint have to be read as a whole to find out whether the averments

disclose a cause of action or whether the suit is barred by any law. Paragraphs 22 and 26 of said judgment are relevant in the context of present case.

The same are excerpted hereunder:

“22. In the case of T. Arivandandam Vs T.V. Satyapal (1977) 4 SCC 467, while considering the very same provision i.e. Order 7 Rule 11 of CPC

and the decree of the trial court in considering such application, this Court in para 5 has observed and held as under:

“5. We have not the slightest hesitation in condemning the petitioner for the gross abuse of the process of the court repeatedly and unrepentantly

resorted to. From the statement of the facts found in the judgment of the High Court, it is perfectly plain that the suit now pending before the First

Munsif’s Court, Bangalore, is a flagrant misuse of the mercies of the law in receiving plaints. The learned Munsif must remember that if on a

meaningful â€" not formal â€" reading of the plaint it is manifestly vexatious, and meritless, in the sense of not disclosing a clear right to sue, he should

exercise his power under Order 7 Rule 11 CPC taking care to see that the ground mentioned therein is fulfilled. And, if clever drafting has created the

illusion of a cause of action, nip it in the bud at the first hearing by examining the party searchingly under Order 10 CPC. An activist Judge is the

answer to irresponsible law suits….â€​

In the case of Madanuri Sri Rama Chandra Murthy (R.K. Roja Vs U.S. Rayudu and another (2016) 14 SCC 275 )t,his Court has observed and

held as under:

“7. The plaint can be rejected under Order 7 Rule 11 if conditions enumerated in the said provision are fulfilled. It is needless to observe that the

power under Order 7 Rule 11 CPC can be exercised by the Court at any stage of the suit. The relevant facts which need to be looked into for

deciding the application are the averments of the plaint only. If on an entire and meaningful reading of the plaint, it is found that the suit is manifestly

vexatious and meritless in the sense of not disclosing any right to sue, the court should exercise power under Order 7 Rule 11 CPC. Since the power

conferred on the Court to terminate civil action at the threshold is drastic, the conditions enumerated under Order 7 Rule 11 CPC to the exercise of

power of rejection of plaint have to be strictly adhered to. The averments of the plaint have to be read as a whole to find out whether the averments

disclose a cause of action or whether the suit is barred by any law. It is needless to observe that the question as to whether the suit is barred by any

law, would always depend upon the facts and circumstances of each case. The averments in the written statement as well as the contentions of the

defendant are wholly immaterial while considering the prayer of the defendant for rejection of the plaint. Even when the allegations made in the plaint

are taken to be correct as a whole on their face value, if they show hat the suit is barred by any law, or do not disclose cause of action, the application

for rejection of plaint can be entertained and the power under Order 7 Rule 11 CPC can be exercised. If clever drafting of the plaint has created the

illusion of a cause of action, the court will nip it in the bud at the earliest so that bogus litigation will end at the earlier stage.â€​

54) Having considered the judgments (supra) and the pleadings in the election petition what has been stated in the written statement is not to be

considered by this Court. This Court only has to consider the averments made in the election petition. A perusal of the averments made in the election

petition would reveal that the election petition has been filed precisely on the grounds, inter alia, that the EVMs used in the said election in 19-Raipur

constituency were tampered / hacked and manipulated, but the petitioner did not raise such objection just after declaration of result. Thus, this ground

of challenge is not available to the election petitioner subsequent to the finalization of the electoral roll. The ground of corrupt practice, as alleged in the

election petition, that the EVM is not proper mode of conducting elections, as an EVM can be manipulated, hacked to transfer the vote to credit in the

account of others and the returned candidate has succeeded to manipulate the EVM. The question of manipulating the EVM has finally been decided

holding that despite the opportunity those who are questioning the reliability of the EVMs never came forward and utterly failed to challenge the

reliability of the election through EVMs and finally it has been settled that the EVM is the correct mode of conducting election, however, with the

observation that the VVPAT should be annexed to the limit prescribed by the Hon’ble Apex Court. The next ground of challenge in the election

petition is that the election petitioner did not raise any of the grounds raised in the election petition before the Returning Officer at the time of election

or at the time of counting of votes. What has been done is that the Congress Committee of Uttarakhand on 12.03.2017 has submitted a memorandum

to the Chief Election Officer, Uttarakhand with a request to keep all the EVMs used in the State in 2017 Assembly Elections under safe custody.

Mere filing of a memorandum cannot be construed to be an objection filed on behalf of the election petitioner. Non-filing of objection in this regard

before the Returning Officer at the relevant point of time amounts to waiver of the rights of the election petitioner.

55) Cause of action is a bundle of facts which can be verified from the plaint alone i.e. the election petition. A perusal of the election petition would

reveal that though the petitioner has made several allegations of corrupt practice on the points mentioned in the preceding paragraph, but nowhere the

election petitioner has disclosed the cause of action to file the election petition. Thus, firstly the petitioner has failed to comply with the provisions

contained in clause (a) of Rule 11 of Order 7 of the Code; secondly, despite an objection raised by the respondent by filing an application under Order

VII Rule 11 of the Code that the election petition has not been verified in view of the provisions contained in Order 6 Rule 15 of the Code as well as

the affidavit of verification and affidavit of corrupt practice as envisaged in Rule 94-A on Form 25 has not been complied with, the election petitioner

failed to remove such material defects in the election petition even after opportunity being affording to him. It is settled position in law that if the

statute provides a particular thing to be done in a particular manner, the same should be done in that manner alone and not otherwise. Besides this, as

this Court has not entered into the merit of the election petition, and rather has dwell into the core issue as to whether the instant election petition

discloses any cause of action, a perusal of the averments made in the election petition and plea taken in the written statement, makes its crystal clear

that the election petition does not disclose any cause of action. In such view of the matter, the elections petition is liable to be dismissed in view of

clause (a) of Order VII Rule 11 of the Code and the application filed by the returned candidate under Order 7 Rule 11 of the Code deserve to be

allowed.

56) Accordingly, the application filed by the returned candidate under Order VII Rule 11 of the Code is allowed. The election petition stands

dismissed.

57) In the facts and circumstances, the parties shall bear their own cost.

58) Record of the election petition be consigned to the record room.