Supreme Court of India
KULDEEP SINGH PATHANIAversusBIKRAM SINGH JARYAL
- Citation
- 2017 INSC 73
- Decided
- 24 January 2017
- Disposal
- Appeal(s) allowed
- Bench
- KURIAN JOSEPH
Holding
The Supreme Court held that the High Court erred; the enquiry under Order VII Rule 11(a) must be limited to the plaintiff’s pleadings, and the petition disclosed a cause of action, so the appeal is allowed.
Summary
Kuldeep Singh Pathania, who lost a 2012 Himachal Pradesh Legislative Assembly election, filed an election petition under Section 100(1)(d)(iii) of the Representation of the People Act, 1951 alleging irregularities in voting and postal ballots. The Himachal Pradesh High Court dismissed the petition on preliminary grounds, holding that it lacked material facts under Section 83(1)(a) and therefore disclosed no cause of action. On appeal, the Supreme Court held that the High Court erred by considering the respondents' written statements while deciding the preliminary issue, which should have been examined solely under Order VII Rule 11(a) of the CPC, i.e., based only on the plaintiff’s pleadings. The Court clarified that Order XIV Rule 2(2) deals only with jurisdiction and bar to suit, not with cause of action, and that the petition did disclose a cause of action. Consequently, the appeal was allowed, the impugned order set aside, and the petition remitted to the High Court for a merits trial.
Issues considered
- Whether the High Court correctly applied Order VII Rule 11(a) and Order XIV Rule 2(2) in dismissing the election petition for lack of material facts and cause of action.
- Whether the respondents' written statements and replies may be considered while determining a preliminary issue of cause of action under Order VII Rule 11(a).
- Scope of a preliminary issue under Order XIV Rule 2(2) versus an enquiry under Order VII Rule 11(a) of the CPC.
- Whether the election petition disclosed a cause of action under Section 83(1)(a) of the Representation of the People Act, 1951.
Legislation cited
- Code of Civil Procedure, 1908s. Order VII Rule 11(a), s. Order XIV Rule 2(2)
- Representation of the People Act, 1951s. 100(1)(d)(iii), s. 81, s. 83, s. 86(1)
Subjects
election petitionpreliminary issuecause of actionRepresentation of the People ActOrder VII Rule 11Order XIV Rule 2material factsjurisdictionbar to suit
Judgment
[2017] 1 S.C.R. 915
KULDEEP SINGH PATHANIA A
v.
BIKRAM SINGH JARYAL
(Civil Appeal No. 4080 of201!1)
JANUARY24, 2017 B
[KURIAN JOSEPH AND A. M. KHANWILKAR, JJ.)
The Represe111atio11 of the People Act, 1951 - ss.81, 83, 86(1)
and IOO(J)(d)(iii) - Appel/am lost election from State Legislative
Assembly :... Filed election petition mainly on grounds, uls.
IOO(l){d){iii) - Petition dismissed by High Court based on the
c
findings on preliminary issues thar the elecrion pelilio11 lacked in
material facts as required under s.83(1) of the Act and as such, did
not disclose any cause of action - 011 appeal, held: High Court
e;.,.ed in dealing with the violatio11s alleged by the petitio11er wirh
ri!/ere11ce to the replies furnished by the respo11de11t - It ventured D
into a11 elaborate enquiry i11 the light of pleadings i11 the replies, to
see whether the resulr of the election was materially affected,
appare11tly or rather mistake11ly, u/Or. XIV. r.2, CPC - The issue
relared to an enquiry u!Or. VII, r. JI (a), CPC, a11d hence, there was
no question of a preliminary issue being tried under u!Or. XIV. r.2(2),
E
CPC - l.h1der Or. VII, r.11. the Cour/ has to take a decision looking
al the pleadi11gs of the plaintiff 011ly a11d 11ot 011 the rebu1tal made
by the defe11dant - Averme11ts in the electio11 petilion disclose a
cause of actio11, therefore, petition remitted to High Court to try it
011 meri.ts.
Code of Cfril Procedure, 1908: F
Or. VII, r.11 a11d Or. XTV, r. 2(2) - Difference betwee11 trial of
preliminary issues u/Or. XIV. r.2(2) and e11quiry on preliminary issues
u/Or. VII, r. 11 (a) - Held: E11quiry u11der Or. VII, r. JI is only on
i11Slilutio11al defec{s - The Courr ca11 011ly see whether the plai111,
rather pleadi11gs of the plaintiff. constitute a cause of actio11 a11d G
cannot co11sider the rebuua/ made by the defe11dant or any other
marerials produced by the defe11da11t - I11sofar as trial 011 pre/imi11ary
issues u!Or. XIV. r. 2(2) is co11cerned, rhough ii is 11ot a milli trial,
the Court ca11 and has lo look illto the ell/ire pleadi11gs a11d the
materials available 011 record, to the extent not in dispute.
H
915
916 SUPREME COURT REPORTS [2017] I S.C.R.
A Allowing the appeal, the Court
HELD: 1. The High Court dealt with the violations alleged
by the election petitioner so as to find out whether a cause of
action is made out, but committed a grave error by considering
the explanations offered in the replies filed by the respondents.
B The High Court ventured into an elaborate enquiry in the light of
the pleadings in the replies, to see whether the result of the
election was materially affected, apparently or rather mistakenly,
under Order XIV Rule 2. [Para 5] (919-E-F]
2.1 Order XIV Rule 2 provides for disposal of a suit on a
c preliminary issue and under sub-Rule (2) of Rule 2, if the court is
of opinion that a case or part thereof can be disposed of, on an
issue of law only, it may try that issue first, in case it relates to
jurisdiction of the court or bar to entertaining the suit. After the
1976 amendment, the scope of a preliminary issue under Order
XIV Rule 2(2) is limited only to two areas, viz. jurisdiction of the
D court, and the bar to the suit as created by any law for the time
being in force. The whole purpose of trial on preliminary issue is
to save time and money. Though it is not a mini trial, the court
can and has to look into the entire pleadings and the materials
available on record, to the extent not in dispute. But that is not
E the situation as far as the enquiry under Order VII Rule 11 is
concerned. That is only on institutional defects. The court can
only see whether the plaint, or rather the pleadings of the plaintiff,
constitute a cause of action. If a replication is filed after the stage
of written statement, the same also can be looked into to see
whether there is any admission on the part of the plaintiff. In
F other words, under Order VII Ruic 11, the court has to take a
decision looking at the pleadings of the plaintiff only and not on
the rebuttal made by the dckndant or any other materials
produced by the defendant. [Para 61 [919-G-H; 920-A-C]
2.2 The High Court committed a mistake in the present
G case, since four out of the six issues settled were taken as the
preliminary issues. 1\vo such issues actually were relatable only
to Order VII Ruic 11 of the Code, in the sense those issues
pertained to the rejection at the institution stage for lack of
nwterial facts and for not disclosing a cause of action. Merely
H
KULDEEP SINGH PATHANIA v. BIKRAM SINGH JARYAL 917
because it was a trial on preliminary issues at the stage of Order A
XIV, the scope does not change or expand. The stage at which
such an enquiry is undertaken by the court makes no difference
since an enquiry under Order VII Rule ll(a) of the Code can be
takc11 HiJ at any stage. [Para 7] [920-D-Ej
2.3 Thus, for an enquiry under Order VII Rule 11 (a), B
011ly the pleadings of the plaintiff-petitioner can he looked into
even if it is at the stage of trial of preliminary issues under Order
XIV Rule 2(2). But the entire pleadings on both sides can be
looked into under Order XIV Rule 2(2) to see whether the court
has jurisdiction and whether there is a bar for entertaining the
suit. [Para 8] [920-F]
c
2.4 In the present case, the issue related to an enquiry
under Order VII Rule ll(a) of the Code, and hence, there was no
question ofa preliminary issue being tried under Order XIV Rule
2(2) of the Code. The court exercised its jurisdiction only under
Section 83(1}(a) of the Act read with Order VII Rule ll(a) of the D
Code. Since the scope of the enquiry at that stage had to be limited
only to the pleadings of the plaintiff, neither the written statement
nor the averments, if any, filed by the opposite party for rejection
under Order VII Rule ll(a) of the Code or any other pleadings of
the respondents could be considered for that purpose. [Para 9] E
[920-G-H]
Mayar (H.K.) Ltd. and Others v. Owners & Parties,
Vessel M V Fortune Express and Others (2006) 3 SCC
100 : [2006] 1 SCR 860 - relied on.
Virender Nath GauU1111 v. Satpal Singh and Others F
(2007) 3 sec 617 : [20061 10 Suppl. SCR 413 -
referred to.
Case Law Reference
[2006] 1 SCR 860 relied on Para 10
G
[2006] 10 Suppl. SCR 413 referred to Para 11
CIVIL APPELLATE JURISDICTION: Civil Appeal No. 4080
of2014.
From the Judgment and Order dated 09.01.2014 of the High
Court ofHimaclrnl Pradesh at Shimla in Election Petition No. 2of2013. 1-1
918 SUPREME COURT REPORTS (2017] I S.C.R.
A E. C. Agrawala, Anand Sharma, Advs. for the Appellant.
B. S. Banthia, Sachin Daga, Advs. for the Respondent.
The Judgment of the Court was delivered by
KURIAN, J. I. Chapter llI of Part VI of The Representation
B of the People Act, 1951 (hereinafter referred to as "the Act") deals with
trial of election petitions. Under Section 86( I) of the Act, "the High
Court shall dismiss an election petition which does not comply with the
provisions of Section 81 or Section 82 or Section 117". Section JOO of
the Act provides for grounds for declaring election to be void. Section
I 00( 1)(d)(iii) of the Act provides that an election ofa returned candidate
c can be declared to be void ifthe High Court is of the opinion that the
result of the election, in so far as it concerns a returned candidate, has
been materially affected by the improper reception, refusal or rejection .
ofany vote or the reception ofany vote which is void. Section 81 provides
for institutional requirements including limitation and Section 117 provides
D for deposit of security for costs. Section 83, under Chapter II, deals
with contents of an election petition. Under Section 83(1 )(a) of the Act,
"an election petition shall contain a concise statement of material facts
on which the petitioner relies". Under Order VII Rule I !(a) of the
Code of Civil Procedure, 1908 (hereinafter referred to as "the Code"), a
plaint shall be rejected where it does not disclose a cause of action and
E under Order XIV Rule 2(2), the court may deal with the preliminary
issue on jurisdiction of the cou11 and bar to the suit created by any Jaw in
force. These are the provisions relevant for consideration of the present
case.
2. The appel !ant lost election from Bhattiyat Assembly
F Constituency ofHimachal Pradesh Legislative Assembly held in 2012
by a margin of 111 votes. He filed an election petition mainly on the
grounds under Section I 00( I)( d)(iii) of the Act. Of the six issues settled,
issues 2 to 5 were treated as preliminary issues, of which, issues 2 and 3
related to cause of action:
G "2) Whether the election petition is liable to be dismissed in limine
for lack of material facts and particulars, as alleged?
3) Whether the election petition is not maintainable for want of
any cause of action, as alleged?"
3. Appellant is aggrieved since his petition has been dismissed,
H
KULDEEP SINGH PATHANIA v. BIKRAM SINGH JARYAL 919
[KURIAN, J.]
based on the findings on the preliminary issues that the election petition A
lacked in material facts as required under Section 83(1)(a) of the 1951
Act and as such, did not disclose any cause of action.
4. As far as the averments in the election petition are concerned,
it is not necessary for us to refer to the same in extenso since they have
been summarized in paragraph-27 of the impugned judgment, which reads B
as follows:
"27. The "violations" alleged by the petitioner during poling and
counting of votes can be grouped in the following three categories,
which shall be dealt with one by one:-
!. Exercise of dual right of franchise by a voter and c
discrepancy between the EVM record and the record
maintained in Form 17-A at polling station No.92-Kamla;
II. Improper reception of30 postal ballot papers; and
Ill. Discrepancy regarding 100 postal ballot papers-whether D
597 or 697?"
5. The High Court dealt with the violations referred to above
extensively so as to find out whether a cause of action is made out, but
committed a grave error by considering the explanations offered in the
replies filed by the respondents. All the three violations have been
E
discussed meticulously by the High Court with reference to the replies
furnished by the respondents and the court came to the conclusion that
the petition did not disclose any cause of action since it lacked material
facts. The High Court ventured into such an elaborate enquiry in the
light of the pleadings in the replies, to see whether the result of the
election has been materially affected, apparently or rather mistakenly, F
under Order XIV Rule 2.
6. Order XIV deals with settlement of issues and determination
of suit on issues of law or on issues agreed upon. Order XIV Rule 2
provides for disposal of a suit on a preliini~ary issue and under sub-Rule
(2) of Rule 2, if the court is ofopinion that a case or part thereofcan be G
disposed of on an issue of law only, it may try that issue first, in case it
relates to jurisdiction of the court or bar to entertaining the suit. After
the 1976 amendment, the scope of a preliminary issue under Order XIV
Rule 2(2) is limited only to two areas, one is jurisdiction of the court, and
the other, bar to the suit as created by any law for the time being in
H
920 SUPREME COURT REPORTS [2017] I S.C.R.
A force. The whole purpose of trial on preliminary issue is to save time
and money. Though it is not a mini trial, the court can and has to look into
the entire pleadings and the materials available on record, to the extent
not in dispute. But that is not the .situation as far as the en.quiry under
Order VII Rule 11 is concerned. That is only on institutillnal defects.
The court can only see whether the plaint, or rather the pleadings of the
B
plaintiff, co11stitute a cause of action. Pleadings in the sense where, even
after the stage of written· statement, if there is a replicatiq.n filed, in a
given situation the same also can be looked into to see whether there is
any admission on the part of the plaintifl'. In other words, (mder Order
VII Rule 11, the court has to take a decision looking at the pleadings of
c . the plaintiff only and not on the rebuttal made by the defendant or any
other materials produced by the defendant.
7. It appears, the High Court committed a mistake in the present
case, since four out of the six issues settled were taken as the preliminary
issue~. Two such issues actually are relatable only to Order VII Rule 11
0 . of the Code, in the sense those issues pertained to the rejection at the
in,stitution stage for lack of material facts and for not disclosing a cause
· of action. Merely because it is a trial on preliminary issues at the stage
of Order XIV, the scope does not change: or expand. The stage at which
such an enquiry is undertaken by the court makes no difference since an
enquiry tinder Order Vil Rule I !(a) of the Code can be taken up at any
E stage.
.. 8. Thus, for an enquiry under Order VII Rule 11 (a), only the
pleadings of the plaintiff-petitioner can be looked into even if it is at the
stage of trial of preliminary issues under Order XIV Rule 2(2). But the
entire pleadings on both sides can be looked into,under Order XIV Rule
F 2(2) to see whether the court has jurisdiction and whether there is a bar
for entertaining the suit.
9. In the present case, the issue re)ate~.to an enq11icy under Order
VII Rule 11 (a) of the Code, and hence, there is no question of a
preliminary issue being tried under Order XIV Rule 2(2) of the Code.
G The court exercised its jurisdiction only under Section 83( I )(a) of the
Act read with Order VII Rule 11 (a) of the Code. Since the scope of the
enquiry at that stage has to be limited only to the pleadings of the plaintiff,
neither the written statement nor the averments, if any, filed by the
opposite party for rejection under Order VII Rule 11 (a) of the Code or
any other pleadings of the respondents can be considered forthat purpose.
H
KULDEEP SINGH PATHANIA v. BIKRAM SINGH JARYAL 921
[KURIAN, J.)
·. 10. In Mayar (H.K.) Ltd. and others v. Owners & Parties, A
Vessel M.V. Fortune Express and others', this Court has dealt with
a similar issue. To the extent relevant, paragraph-12 reads as follows:
"12. From the aforesaid, it is apparent that the plaint cannot-be
rejected on the basis of the allegations made by the defendant in
his written statement or in an application for rejection of the B
plaint. The court has to read the entire plaint as a whole to find
out whether it discloses a cause of action and if it does, then the
plaint cannot be rejected by the court exercising the powers under
Order 7 Rule 11 of the Code. Essentially, whether the plaint
discloses a cause of action, is a question of fact which has to be
gathered on the basis of the averments made in the plaint in its c
entirety taking those averrnents to be correct. A cause of action
is a bundle of facts which are required to be proved for obtaining
relief and forthe said purpose, the material facts are required to
be stated but not the evidence except in certain cases where the
pleadings relied on are in regard to misrepresentation, fraud, wilful D
default, undue influence or of the same nature. So long as the
plaint discloses some cause of action which requires
determination by the court, the mere fact that in the opinion of
the Judge the plaintiff may not succeed cannot be a ground for
rejection of the plaint. ... "
E
11. It is not necessary to load this judgment with other judgments
dealing with this first principle of Order VII Rule I !(a) of the Code. As
held by this Court in Virender Nath Gautam v. Satpal Singh and
others', at paragraph-52:
"52. The High Court, in our considered opinion, stepped into F
prohibited area of considering correctness of allegations and
evidence in support of averrnents by entering into the merits of
the case which would be permissible only at the stage of trial of
the election petition and not at the stage of consideration whether
the election petition was maintainable and dismissed the petition.
The said action, therefore, cannot be upheld and the order G
deserves to be set aside."
12. As we have been taken through the averments in the election
1
(2006)3 sec wo
2
(2007) 3 sec 617 H
922 SUPREME COURT REPORTS [2017] 1 S.C.R.
A petition and we are satisfied that the petition has disclosed a cause of
action, it is not necessary to rernit the petition for a fresh enquiry in that
regard.
13. The appeal is however allowed, the impugned order is set
aside and the election petition is remitted to the High Court to try it on
B merits exvditiously, and being one filed in the year 2013, preferably
with in a period of four months. We make it clear that we have not
expressed any opinion on the merits of the case.
14. There shall be no order as to costs.
Divya Pandey Appeal allowed.
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