NANDIESHA REDDYversusMRS. KAVITHA MAHESH

                         (2011] 8 S.C.R. 154

A                       NANDIESHA REDDY
                                  v.
                     MRS. KAVITHA MAHESH
                  (Civil Appeal No. 5142 of.2011)
                            JULY 8, 2011
B
       [HARJIT SINGH BEDI AND CHANDRAMAULI KR.
                      PRASAD, JJ.]

        REPRESENTATION OF THE PEOPLE ACT, 1951:
c
       ss. 83, 87 and 100 (1)(c) of the Act and 0. 6, r. 16, 0. 7,
  r. 11 CPC - Election petition - Challenging the election of
  the Returned Candidate - On the ground that nomination of
  the election petitioner was illegally not accepted by the
D Returning Officer - Applications for striking off the pleadings
  and for dismissal of the petition for non-compliance of ss. 33
  and 34 and on the ground that the election petition did not
  contain concise statement of material facts and that the
  material facts did not disclose any cause of action - "Material
  facts" - Connotation of - HELD: From a plain reading of the
E averments made in the election petition, it is evident that the
  election petitioner has averred that nomination paper was
  signed by 10 electors, she asked for the latest electoral roll
  for verifying and extracting the part numbers and serial
  numbers of the proposers, but it was denied and when she
F delivered the nomination paper to the Returning Officer, he
  did not receive the same - These statements at this stage
  have to be accepted as true - Thus, the election petition does
  contain material facts and one of the grounds for declaring
  the election as void in terms of s. 100 (1) (c) was specifically
G pleaded - Therefore, the election petition is not liable to be
  dismissed at the threshold and the matter is fit to go for trial
  - Whether the material facts are true or not is a matter of trial
  - The High Court has rightly rejected the applications - Code
  of Civil Procedure, 1908 - 0. 6, r. 16 and 0. 7, r. 1.
H                               154
      NANDIESHA REDDY v. KAVITHA MAHESH                     155


     s. 81 - Election petition - Locus - "Candidate" -             A
Connotation of - -HELD: An election petition, calling in
question any election can be presented by any.candidate at
such election - Candidate would not be only such person
whose nomination has been found valid - In the instant case,
there is clear averment in the election petition that nomination   8
paper was subscribed by 10 electors and delivered to the
Returning Officer, but he did not receive the same - Thus,
the election petitioner shall be deemed to be a candidate
entitled to challenge the election of the returned candidate.

    s. 33 - Election to the State Legislative Assembly - C
Rejection of nomination - HELD: When a nomination paper
is presented, it is the bounden duty of the Returning Officer
to receive the same, peruse it, point out the defects, if any,.
and allow the candidate to rectify the defects and when the
defects are not removed, then alone the question of rejection D
of nomination would arise.

     s. 34 -Election to State Legislative Assembly - Deposit
to be made by the candidate - Nomination paper not
received by the Returning Officer- HELD: There was still time      E
for presenting the nominatiqn paper and had the same been
accepted for scrutiny the deposit could have been made by
the. election· petitioner. .

      The election of the appellant to the State Legislative
  Assembly was challenged by the respondent in an                  F
  election petition before the High Court on the ground that
  the nomination of the election petitioner was illegally not
  accepted by the Returning Officer. According to the
  election schedule, the last date for submission of
  nomination was 23.4.2008 whereas the scrutiny of the             G
  nomination papers was to be undertaken on 24.4.2008
  and the date of election was 10.5.2008. After de-limitation,
. the original constituency was split in three
  constituencies. In order to contest the election from the
                                                                   H
    156       SUPREME COURT REPORTS              [2011) 8 S.C.R.


A Constituency concerned, according to the election
  petitioner, she obtained a set of nomination forms from
  the Returning Officer on 19.4.2008 and delivered the same
  together with all annexures to the Returning Officer on
  23.4.2008 and requested·him to furnish the latest electoral i
8 roll of the Constituency concerned in order to extract the
  new part numbers of the proposers for incorporating the
  same iri the appropriate column, but she was not
  supplied the latest electoral roll and when she submitted
  the nomination papers, the same were not received; and
C this rendered the election of the appellant null and void.

       The appellant filed two applications - one under 0.
  6 r.16 CPC for striking off the pleadings from the election
  petition and the other u/ss 83 and 86 of the
  Representation of the People Act, 1951 read with 0 7 r.
D 11 CPC for dismissal of the election petition. It was
  pointed out that the election petitioner was neither a
  candidate set up by any recognized political party nor
  was her nomination subscribed by ten electors of the
  Constituency; that she had not made any deposit as
E required u/s 34 of the Act; that there was non-compliance
  of s. 81 (3) of the Act as the appellant was not furnished
  with the true attested copy of the election petition and its
  annexures as presented to the court; and that the
  election petition did not contain concise statement of the
F material facts on which the election petitioner relied and
  the material facts averred did not disclose any cause of
  action for the relief sought for. The High Court rejected
  both the applications. Aggrieved, the returned candidate
  filed the appeal.
G         Dismissing the appeals, the Court
         HELD: 1.1. From a plain reading of the averments
    made in .t~ election petition, it is evident that the election ·
    petitioner has averred that nomination paper was signed
H
       NANDIESHA REDDY v. KAVITHA MAHESH                 157


  lby 1O electors. It was delivered to the Returning Officer    A
· lwith a request to make available the latest electoral roll
   of newly created Constituency for filling up the new part
   numbers and serial numbers of the proposers in the
   resp~ctive columns. However, the Returning Officer
   stated that he is not in possession thereof and asked the    B
   election petitioner to approach the revenue office for
   verifying and extracting the part number and serial
   number of the proposers~ Attempts made on behalf of the
   election petitioner to get those details from the revenue
   office were rendered futile. Thereafter, the election        c
   petitioner approached the Returning Officer again for
   delivering the nomination papers with the explanation. It
   did not yield any result. These averments at .this stage
   have to be accepted as true. [para 12] [170-F-Ji; 171-A-D]
      1.2. Section 81 of the Representation. of the People      D
 Act, 1951 makes it clear that an election petition calling
 in question any election can be presented by any
 candidate at such election. Candidate would not be only
 such person whose nomination has been found valid. In
 the instant case, the election petitioner's plea is that the   E
 Returning Officer declined to accept the nomination
 papers. When a nomination paper is presented it is the
 bounden duty of the Returning. Officer to receive the
 nomination, p~ruse it, point out the defects, if any, and
 allow the candidate to rectify the defects and when the        F
 defects are not removed then alone the question of
 rejection of nomination would arise. Any other view will
 lead to grave consequences. Section 33(4) of the Act
 casts a duty on the Returning Officers to satisfy himself
 that the names and the electoral roll numbers of the           G
 candidates and their proposers as entered in the
 nomination paper are the same as in the electoral rolls.
 [para 13) [172-B-F]
     1.3. As regards failure to subscribe the nomination
 papers by 10 electors as required under the first proviso      H
    158      SUPREME COURT REPORTS             [2011) 8' S.C.R.


A to s.33 of the Act, there is clear averment in the election
  petition that nomination paper was subscribed by 10
  electors. Whether in fact it was done or not is a matter of
  trial and at this stage this Court has to proceed on an
  assumption that the averments made in the election
B petition are true. Thus, the election petitioner shall be
  deemed to be a candidate and entitled to challenge the
  election of the Returned Candidate. [para 14] (172-G-H;
  173-A]

C       Mithilesh K. Sinha v. Returning Officer for Presidential
    Election 1992 (1) Suppl. SCR 651 = 1993 Supp. (4) SCC
    386 - distinguished

        Pothula Rama Rao v. Pendyala Venakata Krishna Rao
                       =
    2007 (8) .SCR 982 (2007) 11 SCC 1 - held inapplicable.
D
      2. So far as compliance of s.34 of the Act is
  concerned, there was still time left for presenting the
  nomination paper and in case the same would have been
  accepted for scrutiny, the election petitioner could have
E made deposit within the time. It is only after expiry of the
  time had the election petitioner not made the deposit, the
  nomination was liable to be rejected. [para 18] (174-D-E]

       3.1. Section 83(1 )(a) inter alia provides that an
  election petition shall contain a concise statement of the
F material facts. Further, s. 87 of the Act provides that
  subject to the provisions of the Act and the Rules framed
  thereunder every election petition shall be· tried in
  accordance with the procedure applicable under the
  Code of Civil Procedure to the trial of suits. Order 6 of the
G Code is devoted to the pleadings generally and r. 2(1)
  thereof, inter alia, provides that every pleading shall
  contain statement in a concise form all the material facts
  on which the party pleading relies for claim. The phrase
  'material fact' as used in s. 83(1)(a) of the Act or 0. 6 r. 2
H of the Code has not been defined in the Act or the Code.
     NANDIESHA REDDY v. KAVITHA MAHESH                  159


All specific and primary facts which are required to be        A
proved by a party for the relief claimed are material facts.
An election petition can be summarily dismissed if it does
not furnish the material facts to give rise to a cause of
action. However, what are the material facts always
depend upon the facts of each case and no rule of              8
universal application is possible to be laid down in this
regard. [para 21) [176-B-F]

     3.2. In the instant case, the election petitioner has
clearly averred that his nomination was subscribed by
ten electors and presented before the Returning Officer        C
but the same was not received and rejected. Thus one
of the grounds for declaring the election to be void as
provided u/s 100(1)(c) of the Act was specifically pleaded.
Therefore, the election petition does contain material
facts and the same is not liable to be dismissed at the        D
threshold and the matter is fit to go for trial. Whether
those material facts are true or false is a matter of trial.
[para 16 and 22] [173-E-H; 176-G-H]
    Anil Vasudev Salgaorikar v. Naresh Kushali Shigaonkar,     E
                    =
2009 (14) SCR 10 (2009). 9 SCC 310; and Ram Sukh v.
                                     =
Dinesh Aggarwal 2009 (14) SCR 836 (2009) 10 SCC 541 -
held inapplicable                        ·

                     Case Law Reference:
                                                               F
  1992 (1) Suppl. SCR 651 distinguished           para 10
  2007 (8) SCR 982           held inapplicable    para 10
  2009 (14) SCR 10           held inapplicable    para 19
  2009 (14) SCR 836          held inapplicable    para 19      G

    CIVIL APPELLATE JURISDICTION : Civil Appeal No.
5142 of 2011.

    Fronjl the Judgment & Ord~r dated 12.11.2009 of the High   H
    160       SUPREME COURT REPORTS               [2011] 8 S.C.R.


A   Court of Karnataka at Bangalore in Misc. Civil No. 15572 of
    2009 in Election Petition No. 7 of 2008.

                                  WITH
    C.A. No. 5143 of 2011.
B
        Dushyant Dave, R.C. Hegde, C. Shashikant, Girish
    Ananthmurthy, P.P. Singh for the Appellant.

          Respondent-In-Person.

C         The Judgment of the Court was delivered by

        CHANDRMAULI KR.PRASAD, J. 1. Nandiesha Reddy
  got elected to the Karnataka Assembly in the general election
  from K.R.Pura Assembly Constituency held on 10th of May,
0 2008.   His election was challenged by Kavitha Mahesh, inter
  alia, on the ground that her nomination was illegally not accepted
  by the Returning Officer which rendered Nandiesha Raddy's
  election void. Nandiesha Reddy (hereinafter to be referred to
  as 'the Returned Candidate') filed two applications; one under
  Order VI Rule 16 of the Code of Civil Procedure for striking out
E pleading from the election petition and another under Sections
  83 and 86 of the Representation of the People Act, 1951
  (hereinafter to be referred to as 'the Act') read with Order VII
  Rule 11 of the Code of Civil Procedure, 1908 for dismissal of
  the election petition. The Karnataka High Court by the
F impugned orders dated 8th October, 2009 and 12th November,
  2009 dismissed the aforesaid applications.

        2. The Returned Candidate assails aforesaid orders in the
    present Special Leave Petitions.
G
          3. Leave granted.

          4. Short facts giving rise to the present appeals are that
    the Election Commission of India on 16th of April, 2008 notified
    its intention to hold General election to the Karnataka State
H
      NANDIESHA REDDY v. KAVITHA MAHESH                          161
         [CHANDRAMAULI KR. PRASAD, J.]
Legislative Assembly and announced the election schedule.                A
According to the schedule, the last date for submission of the
nomination was 23rd of April, 2ooa whereas the scrutiny of the
nomination papers was to be undertaken on 24th of April, 2008.
The date of election fixed was 10th of May, 2008. Kavitha
 Mahesh (hereinafter referred to as 'the Election Petitioner') was       B
 an electorate in the combined Varthur Assembly Constituency
 prior to de-limitation. After de-limitation the said constituency
 has been split into three constituencies, namely (i)
 Mahadevapura (ii) C.V.Raman Nagar and (iii) K.R.Pura. A~er
the de-limitation, the Election Petitioner's name appeared in            c
 the electoral roll of C.V.Ramana Nagar Constituency. In order
 to contest the election from K.R.Pura Assembly Constituency,
 according to the Election Petitioner, on 19th of April, 2008 she
 obtained a set of nomination forms from the Returning Offic;:er.
 It is her case that on 23rd of April, 2008 at about 2.00 p.M.           D
she delivered the nomination papers together with all annexures
to the Returning Officer and requested him to furnish the latest
electoral roll of K.R.Pura Assembly Constituency in order 'to
extract the new part number and serial number of the proposers
who had signed on the nomination papers for incorporating the
 same in the appropriate column against their respective names.          E
 It is alleged that the Returning Officer instead of furnishing the
 latest electoral roll of K.R.Pura Assembly Constituency, asked
 the Election Petitioner to approach the Revenue Office to obtain
·those d~tails. It has specifically been averred by the Election
 Petitioner that she went to the Revenue Office but could not get        F
 those details from the Revenue Officer and therefore, she went
to file the nomination· papers, presented the same before the
 Returning Officer but it was not received. It is her allegation that,
thereafter, she attempted to give a handwritten representation
to the Returning Officer but the same was also not accepted.             G
Hence she left the place without filing the nomination. It is also
her allegation that on 28th of April, 2008, she filed a complaint
in this regard before the Chief Election Commissioner.

     5. The election was held on 10th of May, 2008 and its               H
    162       SUPREME COURT REPORTS                [2011] 8 S.C.R.


A result was published on 27th of May, 2008 in which the Returned
  Candidate was declared elected from K.R.Pura Assembly
  Constituency. This was challenged by the Election Petitioner
  in an election petition before the Karnataka High Court. The
  Election of the Returned Candidate was sought to be declared
B null and void on the ground of illegal rejection of.nomination
  paper at threshold by the Returning Officer.

        6. As usual, the Returned Candidate filed applications for
  striking out various paragraphs from the election petition. This
  was registered as Misc. Civil No. 15204 of 2009. Another
C application for dismissal of the election petition was filed which
  was registered as Misc. Civil N6. 15772 of 2009. In this
  application it was pointed out that as the Election Petitioner was
  not a candidate set up by any recognised political party, for
  valid nomination according to first proviso of Section 33 (1) of
D the Act the nomination paper was required to be subscribed
  by ten electors of the constituency. It was further pointed out that
  the Election Petitioner shall not be deemed to be duly
  nominated for election from the constituency as she had not
  made any deposit as required under Section 34 of the Act. The
E Returned Candidate further alleged non-compliance of Section
  81 (3) of the Act and contended that he has not been furnished
  with the true attested copy of the election petition and its
  annexures as presented to the Court. The Returned Candidate
  also sought dismissal of the election petition on the ground that
F the same did not contain concise statement of the material facts
  on Which the Election Petitioner relied and the material facts
  averred did not disclose any cause of action for the relief sought
  for.

G        7. All these pleas raised by the Returned candidate were
    considered and have been overruled by the High Court by the
    impugned orders. While rejecting the application (Civil Misc. ·
    No. 15204 of 2009) for striking out the pleading from the
    election petition by order dated 8th October, 2009, the High
    Court observed as follows:
H
     NANDIESHA REDDY v. KAVITHA MAHESH                         163
       [CHANDRAMAULI KR. PRASAD, J.]
    "53. It is for this reason, I am of the view that the pleadings A
    in the petition does not warrant striking off and assuming
    that some pleadings are really not necessary, ultimately if
    the retaining or permitting the pleading to exist does not
    result in any prejudice or embarrassment to the respondent
    and at any rate, if at all there being certain complaint or B
    allegation against the returning officer and his failure to
    adhere to the duties in terms of the statutory provisions and -
    that being a relevant plea in the context of wrongful rejection
    of a nomination paper, I am of the view that there is no
    occasion to strike out the pleadings as is sought to be           c
    made out in the application."

     8. The High Court rejected Civil Misc. No. 15772 of 2009
by order dated 12th of November, 2009 and while considering
the plea that the averments in the election petition did not
disclose any cause of action for granting the relief in terms of      D
the prayer the High Court observed as follows:

     • 55. Whether the nomination as was delivered to the
    . returning officer by the petitioner as a candidate at 1400
      hours on 23-4-2088 in fact, did amount to a valid               E
      nomination within the scope of the provisions of Section
      33 or not, is not a question that surfaces itself for
      examination at this stage, but later and for the purpose of
      applying the drastic penal provision of Order VII Rule 11 (a)
      CPC, we have to necessarily accept the plea at its face         F
      value and not by seeking for further elaboration or for the
      proof for the same.     ·

    56 .............. in my considered opinion, the petition
    averments contain sufficient plea to disclose a cause of
    action and for granting relief in terms of the prayer. It is,     G
    therefore, in my opinion, that the election petition cannot
    be dismissed on the application [filed by the respondent-
    returned candidate] applying the test of the provisions of
    Order VII Rule 11 (a} CPC."
                                                                      H
    164        SUPREME COURT REPORTS                 (2011) 8 S.C.R.


A       9. As regards the plea of non-deposit as required under
    Section 34 of ~he Act, the High Court observed as follows:

          • 105. Responding to this contention, petitioner has
          submitted that while the deposit is a requirement in law, a
B         deposit can be made till the last moment; that there was
          still time for presenting· the nomination paper, that when the
          petitioner attempted to present the nomination paper, time
          for presentation had not yet come to an end; that even
          assuming that there was no deposit, it was the bounden
          duty of the returning officer to point out the requirement of
c         deposit fee and enable the candidate to arrange for
          deposit and it is only thereafter if the deposit is not made
          before the expiry of time of filing of nomination, then alone,
          the provisions of Section 34 of the Act can be said to come
          into play; that the provisions of sub-section (4) of Section
D         36 of the Act takes care of the situation and such a
          situation will arise only when the returning Officer having
          consciously and deliberately avoided even scrutinizing the
          nomination papers, by not even receiving the nomination
          paper, the argument is only hypothetical and is of no
E         consequence in determining the validity of the election
          petition nor the validity of the nomination paper.

          106. I have bestowed my attention to the submission made
          at the bar and I find that the argument is really hypothetical,
F         particularly as the returning officer had not even cared to
          look into the nomination paper, as was presented by the
          petitioner-candidate or on her behalf by her supporters."

        As regards the plea of the Returned Candidate that the
  Election Petitioner did not furnish the copy of the election
G petition and its annexures as was presented to the Court and
  that the copies were not duly attested', the High Court answered
  the same in the following words:
          •. . . What had been filed as election petition and
H         annexures with the registry at the time of initial presentation
     NANDIESHA REDDY v. KAVITHA MAHESH                       165
        [CHANDRAMAULI KR. PRASAD, J.]
    have all been, without dispute, furnished to the respondent.     A
    Even a discrep(lncy with regard to the so-called index,
    which has to be construed as a list of documents, in my
    considered opinion, does not make any difference for the
    understanding of the contents of the petition and the
    manner in which the election petitioner has sought for relief    B
    in the election petition and the grounds and materials
    relied upon by the petitioner, as copies of all original
    documents are provided to the respondent and even on a
    comparative perusal of the papers in the court, with the
    copies as received by the respondent-returned candidate          c
    made available by the learned counsel for the respondent,
    I do not find any additional papers having been filed by the
    petitioner copies of which are not made available to the
    respondent in the sense, which can make a material
    difference to the respondent to understand the precise           0
    case of the petitioner, which is not given by the election
    petitioner and therefore I am of the view that this is not  a
    situation warranting dismissal of the election petition und~'r
    Section 86 of the Act, on the premise of non-compliance
    with the requirement of the provisions of Section 81 of the      E
    Act."
      The Returned Candidate's pleas that the election petition
does not contain concise statement of material facts as
contemplated under Section 83 (1) of the Act and has not been
verified in the manner as laid down under Order VI Rule 15 (1)       F
of the Act have also been rejected by the High Court. The High
Court reproduced the verification in its impugned judgment and
found the same to be in three parts and observed as follows:
    " ......... part-I is within the knowledge of the petitioner,
    para-II based on the information and belief and part-Ill on      G
    the information that the petitioner believes to:be true etc.
    In my considered view, the verification even as it stands
    as of now, and with reference to the manner of
    presentation of the petition and having trifurcated or
    separated the petition to parts, sufficiently and in             H
    166        SUPREME COURT REPORTS                 [2011] 8 S.C.R.


A         substantial manner complies with the requirement of
          verification, In terms of clause -c of sub-section (1) of
          Section 83 of the Act and therefore this argument cannot
          be one to reject the election petition at the threshold, on
          the premise that certain requirements in law are not
B         fulfilled."

        10. Mr. Dushyant Dave, learned Senior Counsel appearing
  on behalf of the appellant points out that from the averments in
  the election petition it is apparent that Election Petitioner was
  not a candidate set up by a recognised political party and her
C nomination was not subscribed by 10 electors.Accordingly he
  submits that the Election Petitioner cannot be considered to be
  a candidate so as to maintain the election petition. He draws
  our attention to the first proviso of Section 33 of the Act and
  points out that for a valid nomination it has to be subscribed
D by 10 electors. In support of the submission learned counsel
  for the appellant relies on a Constitution Bench judgment of this
  Court in the case of Mithilesh K. Sinha v. Returning Officer
  for Presidential Election 1993 Supp. (4) SCC 386 and our
  attention is drawn to paragraphs 30 and 31 of the judgment
E which read as under:

          "30. To be entitled to present an election petition calling
          in question an election, the petitioner should have been a
          'candidate' at such election within the meaning of Section
F         13(a) for which he should have been "duly nominated as
          a candidate" an.d this he cannot claim unless the
          mandatory requirements of Section 5-8(1 )(a) and Section
          5-C were complied by him. Where on undisputed facts
          there was non-compliance of any of these mandatory
          requirements for a valid nomination, the petitioner was not
G
          a 'candidate' within the meaning of Section 13(a) and,
          therefore, not competent according to Section 14-A to
          present the petition.

          31. It is also settled by the decisions of this Court that in
H         order to have the requisite locus standi as a 'candidate'
     NANDIESHA REDDY v. KAVITHA MAHESH                     167
        [CHANDRAMAULI KR. PRASAD, J.]
    within the meaning of Section 13(a) for being entitled to     A
    present such an election petition in accordance with
    Section 14-A of the Act the petitioner must be duly
    nominated as a candidate in accordance with Section 5-
    8(1 )(a) and Section 5-C. Unless it is so the petitioner
    cannot even claim to have been duly nominated as a            B
    candidate at the election as required by Section 13(a). The
    above conclusion in respect of the nomination paper of the
    petitioner, Mithilesh Kumar Sinha, from the facts set out
    by him in the petition, stated by him at the hearing and
    evident from the documents filed by him makes it clear that   c
    the petitioner, Mithilesh Kumar Sinha, has no locus standi
    to challenge the election of the returned candidate, Dr
    Shanker Dayal Sharma as he is not competent to present
    the election petition in accordance with Section 14-A of
    the Act read with Order 39 Rule 7 of Supreme Court Rules.
                                                                  0
    Even otherwise the ground under Section 18(1)(c) of the
    Act of wrongful rejection of his nomination paper urged in
    the election petition does not give rise to a triable issue
    on the above facts and the irresistible conclusion
    therefrom. The material facts to make out a prima facie
    case of existence of that ground are lacking in the           E
    pleadings and squarely negatived by petitioner's own
    statement."           ·

  . Reliance has also been placed on a decision of this Court
in the case of Pothula Rama Rao v. Pendyala Venakata              F
Krishna Rao (2007) 11 SCC 1 and reference has been made
to paragraphs 7 and 8 of the judgment which read as follows:
    "7. The first respondent was the official candidate of TOP,
    as he was issued the 8-Form by TOP. Atchuta Ramaiah's
    nomination was not subscribed by 10 proposers but by          G
    only one proposer. The nomination of Atchuta Ramaiah
    was rejected by the Returning Officer, not on the ground
    that he was a "dummy candidate" but because his
    nomination was not subscribed by ten vpters of the
                                                                  H
    168         SUPREME COURT REPORTS               [2011] 8 S.C.R.


A         constituency, and thus there was non-compliance with the
          first proviso to Section 33(1). The rejection is under sub-
          section (2)(b) of Section 36 which provides for rejection
          of any nomination on the ground that there has been a
          failure to comply with provision of Section 33 or Section
B         34.
          8. If an election petitioner wants to put forth a plea that a
          nomination was improperly rejected, as a ground for
          declaring an election to be void, it is necessary to set out
          the averments necessary for making out the said ground.
c         The reason given by the Returning Officer for rejection and
          the facts necessary to show that the rejection was
          improper, should be set out. If the nomination had been
          rejected for non-compliance with the first proviso to sub-
          section (1) of Section 33, that is, the candidate's
D         nomination not being subscribed by ten voters as
          proposers, the election petition should contain averrnents
          to the effect that the nomination was subscribed by ten
          proposers who were electors of the constituency and
          therefore, the nomination was valid. Alternatively, the
E         election petition should aver that the candid9te was set up
          by a recognised political party by issue of a valid B-Form
          and that his nomination was signed by an elector of the
          constituency as a proposer, and that the rejection was
          improper as there was no need for ten proposers. In the
F         absence of such averments, it cannot be .said that the
          election petition contains.the material facts to make out a
          cause of action."
        11. Election Petitioner appears in person. She submits that
  her nomination paper was subscribed by ten electors of the
G Constituency and presented before the Returning Officer but the
  same was not accepted. We have bestowed our consideration
  to the rival submissions. The Election Petitioner, in the election
  petition, has stated that she had "obtained TEN PROPOSERS
  signatures in Part II of Annexure 'A' together with their true
H copies of their Elector Photo Identity Cards". Her further plea
      NANDIESHA REDDY v. KAVITHA MAHESH                       169
         [CHANDRAMAULI KR. PRASAD, J.)
in the election petition is that "as per the given new part           A
number, when we checked for the names of the proposers in
the concerned Electoral Roll, their names were not found". The
relevant pleadings in this regard are at paragraphs 9, 1P a.nd
11 of the election petition and we deem it expedient to
reproduce the same as under:                                          B

          "9. It is most respectfully submitted that the petitioner
    on realizing the time factor to submit the' nomination before
    the 4th respondent by 1500 hours and since the day being
    the last day for filing nomination papers, has presented her      C
    nomination papers together with all necessary enclosures
    before the 4th Respondent with sole intention to comply
    the requirements of new part number and serial number
    in respect of the proposers at the time of scrutiny of
    nomination paper, which is scheduled for next day the 24th
    April, 2008 wherein a clear 24 hours time would be                D
    available before the Petitioner to make good the
    requirements in her nomination paper. The petitioner also
    explained the reason and the actual position prevailing in
    the revenue office and also requested the 4th respondent
    to receive her nomination paper and allow time till scrutiny      E
    to comply the requirement whatsoever.

     10. It is most respectfully submitted that to the petitioners
     surprise the 4th respondent spontaneously reacted and
     commented "I do not want to listen to all your stories and F
     I will not receive your nomination paper without complying
     with the requirement of new part number and serial number
     against the proposers in Part-II of Annexure 'A' and if you
     compel me to receive now and tomorrow I will reject it". At
     that point of time the petitioner on realizing the language .G
     of the 4th respondent, his uncalled for, unwarranted
     comments, which clearly indicated pre-determined ulterior
     motive, has decided to submit the nomination paper
     together with a written representation addressed to
     Respondent No. 4, requesting him to receive the
                                                                      H
     170        SUPREME COURT REPORTS                  [2011] 8 S.C.R.


 A         petiti~'1ers nomination papers, since true copies of Elector
           Phot6 .:jentity Cards issued prior to delimitation duly self
           attested by the respective proposers and true copy of
           enumeration details are being enclosed to prove the
           identity, address and authenticity of the proposers beyond
·s         any doubt. The Representation handwritten by the
           Petitioner and typed copy is marked as Annexure-'P', and
           requested him for time till scrutiny for complying with .the
           requirements whatsoever as per law.

           11. It is most respectfully submitted that the Respondent
 c         No. 4 once again reacted in the same manner and bluntly
           refused to receive petitioner's nomination papers and
           further adding insult to injury, he has commented "I will not
           receive your nomination paper or your representation or
           acknowledge any receipt and continued to say "for your
 D         negligence you cannot blame other people". The petitioner
           on observing 4th respondents illegal and improper
           rejection in violation of statutory law and election
           commission's guidelines, was left with no option but to
           presume the existence of prejudice and predetermined
 E         ulterior motive behind the fourth respondents illegal attitude
           and misuse of power. As such the petitioner left the
           premises humiliated, insulted by the illegal and improper
           rejection of her nomination paper by none other than a
           responsible neutral official like Returning Officer."
 F
        12. From a plain reading of these averments it is evident
  that the Election Petitioner has averred that nomination paper
  was signed by 10 electors. It was delivered to the Returning
  Officer with a request to make available latest electoral roll of
G K.R. Pura Constituency for filling up the new part number and
  serial number of the proposers in the respective columns.
  However, the Returning Officer stated that he is not in
  possession thereof and asked the Election Petitioner to
  approach the revenue office located at the ground floor for
  verifying and e:ictracting the part number and serial number of
H
     NANDIESHA REDDY v. KAVITHA MAHESH                       171
        [CHANDRAMAULI KR. PRASAD, J.]
the proposers. Attempts made on behalf of the Election A
Petitioner to get those details from the revenue office were
rendered futile. Thereafter, the Election Petitioner approached
the Returning Officer again for delivering the nomination paper
with the explanation. It did not yield any result and the Returning
Officer stated that he "will not receive your nomination paper B
without complying the requifement of new part number and
serial number against the proposers in Part-II of Annexure 'A'
and if you compel me to re~eive now, tomorrow I will reject it".
These averments at this stage have to be accepted as true and,
therefore, the question is as to whether Election Petitioner can c
be said to be a candidate so as to maintain the election petition
and further the Returning Officer was right in refusing to accept
the nomination paper on the purported ground that it did not
contain the serial number and part number of the proposers.
Section 81 of the Act inter alia provides for presentation of 0
election petition. It reads as follows:

     "81. Presentation of petitions.-( 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             E
    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 the dates of their election are
    different, the later of those two dates.                         F

     Explanation.-ln 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.
                                                                     G
     1.*****

     [(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    H
    172       SUPREME COURT REPORTS                [2011) 8 S.C.R.


A         by the petitioner under his own signature to be a true copy
          of the petition.]"

           13. From a plain reading of the aforesaid provision it is
    evident that an election petition calling in question any election
8 can be presented by any candidate at such election. Candidate,
    in our opinion, would not be only such person whose nomination
    form has been accepted for scrutiny or whose name appears
    in the list of validly nominated candidate, that is to say,
    candidates whose nominations have been found valid. Here,
C . in the present case, the Election Petitioner's plea is that the
    Returning Officer declined to accept the nomination paper. We
   .are of the opinion that when a nomination paper is presented
    it is the bounden duty of the Returning Officer to receive the
  . nomination, peruse it, point out the defects, if any, and allow
    the candidate to rectify the defects and when the defects are
D not removed then alone the question of rejection of nomination
    would arise. Any other view, in our opinion, will lead to grave
    consequences and the Returning Officers may start refusing to
    accept the nomination at the threshold which may ensure victory
   to a particular candidate at the election. This is fraught with
E danger, difficult to fathom. Section 33(4) of the Act casts duty
    on a Returning Officers to satisfy himself that the names and
    the electoral roll numbers of the candidates and their proposers
    as entered in the nomination paper are the same as in the
    electoral rolls and, therefore, in our opinion, the Election
F Petitioner for the purpose of maintaining an election petition
    shall be deemed to be a candidate.
       14. As regards failure to subscribe the nomination papers
  by 10 electors as required under the first proviso to Section 33
G of the Act, the plea of the Election Petitioner is that it was so
  subscribed. Whether in fact was done or not is a matter of trial
  and at this stage we have to proceed on an assumption that
  the averments made in the election petition are true. There is
  clear averment in the election petition that nomination paper
  was subscribed by 10 electors. In the face of aforesaid there
H
     NANDIESHA REDDY v. KAVITHA MAHESH                       173
        [CHANDRAMAULI KR. PRASAD, J.]
is no escape, from the conclusion that the Election Petitioner       A
shall be deemed to be a candidate and entitled to challenge
the election of the Returned Candidate.
     15. Now we revert to the authority of this Court in the case
of Mithilesh K. Sinha (supra). In the said case election of the
                                                                     8
President was challenged and it was found that the
subsequently delivered nomination paper fifed by the petitioner
of the said case was not subscribed by at least ten electors
as proposers and at least ten electors as seconders as
required by Section 5(8)(1 )(a) of the Presidential and Vice-
Presidential Elections Act, 1952 and in that background it was       C
held that he was not a candidate competent to present the
petition. Here, in the present case, as stated earlier, the
Election Petitioner has averred that her nomination was
subscribed by ten electors and that averment at this stage has
to be treated as correct and, therefore, this distinguishes the      D
case in hand from the case of Mithilesh K. Sinha (supra).
      16. In the case of Pothu/a Rama Rao (supra) the Election
Petitioner's averment was that his nomination was rejected on
the untenable ground that he was a dummy or substitute               E
candidate set up by the TOP. However, there was no averment
that .he was set up as a candidate by TOP in the manner
contemplated in paragraph 13 of the Symbols Order, that is,
by issuing a valid 8-Form in his favour. Nor did the election
petition aver that his nomination paper was subscribed by ten        F
electors. In the face of it this Court came to the conclusion that
the election petition was lacking in material facts necessary to
make out a cause of action. Here, in the present case, as stated
earlier, the Election Petitioner has clearly averred that his
nomination was subscribed by ten electors and presented
before the Returning Officer but the same was not received and       G
rejected. Thus one of the grounds for declaring the election to
be void as provided under Section 100(1)(c) of the Act was
specifically pleaded. Thus, the decision of this Court in the case
of Pothula Rama Rao (supra) in no way supports the plea of
the appellants.                                                      H
    174        SUPREME COURT REPORTS                  [2011] 8 S.C.R.


A        17. Mr. Dushyant Dave, then contends that the Election
   Petitioner has nowhere averred that he had made the deposit
   as required under Section 34 of the Act. According to him
   Election Petitioner shall not be deemed to be duly nominated
   for election unless he deposits the amount provided therein. In
B answer thereto Election Petitioner submits that the deposit as
   contemplated under Section 34 of the Act can be made till the
   time of scrutiny of the nomination. According to her after
   accepting the nomination it was the bounden duty of the
   Returning Officer to point out the requirement of deposit and
c enable the candidate to arrange for deposit and it is only
  ·thereafter if the deposit is not made, the nomination can be
   rejected.
       18. We have considered the rival submissions and we find
  substance in the submission of Mrs. Mahesh. We are of the
D opinion that there was still time left for presenting the nomination
  paper and in case the same would have been accepted for
  scrutiny, the Election Petitioner could had made deposit within
  the time. It is only after expiry of the time had the Election
  Petitioner not made the deposit, the nomination was liable to
E be rejected.
          19. Mr. Dushyant Dave, lastly submits that the election
    petition does not contain material facts and on this ground
    alone the election petition deserves to be rejected at the
    threshold. Reliance has been placed on a decision of this Court
F   in the case of Anil Vasudev Salgaonkar v, Naresh Kushali
    Shigaonkar, (2009) 9 sec 310 and our attention has been
    drawn to paragraph 50 of the judgment which reads as follows:
          "50. The position is well settled that an election petition can
          be summarily dismissed if it does not furnish the cause of
G         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
H         not complied with."
     NANDIESHA REDDY v. KAVITHA MAHESH                         175
        [CHANDRAMAULI KR. PRASAD, J.]
    Yet another decision on which reliance is placed is the            A
    decision of this Court in the case of Ram Sukh v. Dinesh
    Aggarwal (2009) 10 SCC 541 and our attention has been
    drawn to paragraphs 24 and 25 of the judgment which
    read as follows:
                                                                       B
    "24. It needs little reiteration that for the purpose of Section
    100(1 )(d)(iv), it was necessary for the election petitioner
    to aver specifically in what manner the result of the election
    insofaras it concerned the first respondent was materially
    affected due to the said omission on the part of the               C
    Returning Officer. Unfortunately, such averment is missing
    in the election petition.

    25. In our judgment, therefore, the Election Tribunal/High
    Court was justified in coming to the conclusion that
    statement of material facts in the election petition was           D
    completely lacking and the petition was liable to be
    rejected at the threshold on that ground. We have,
    therefore, no hesitation in upholding the view taken by the
    High Court. Consequently, this appeal, being devoid of any
    merit, fails and is dismissed accordingly. Since the first         E
    respondent remained unrepresented, there will be no order
    as to costs."

     20. Mrs. Mahesh has taken us through the averments made
in the election petition including the paragraphs which we have
reproduced in the preceding paragraphs of this judgment and
                                                                       F
contends that the election petition does contain a concise
statement of material facts on which she had relied seeking the
relief of declaration of the election of the Returned Candidate
to be void.
                                                                       G
     21. We have considered the submission and the
submission advanced by Mrs. Mahesh commend us. It is trite
that if an Election Petitioner wants to put forth a plea that a
nomination was improperly rejected to declare an election to
be void it is necessary to set out the averments for making out        ~
    176      SUPREME COURT REPORTS                 [2011) 8 S.C.R.


A the said ground. The reason given by the Returning Officer for
  refusal to accept the nomination and the facts necessary to
  show that the refusal was improper is required to be set out in
  the election petition. In the absence of the necessary averments
  it cannot be said that the election petition contains the material
B facts to make out a cause of action. Section 83(1 )(a) inter alia
  provides that an election petition shall contain a concise
  statement of the material facts. Further, Section 87 of the Act
  provides that subject to the provisions of the Act and the Rules
  framed thereunder every election petition shall be tried in
c accordance with the procedure applicable under the Code of
  Civil Procedure to the trial of suits. Order VI of the Code of Civil
  Procedure is devoted to the pleadings generally and Rule 2(i)
  thereof, inter alia, provides that every pleading shall contain
  statement in a concise form all the material facts on which the
  party pleading relies for claim. In an election petition, which
0
  does not contain material facts, no relief can be granted. The
  phrase 'material fact' as used in Section 83(1 )(a) of the Act or
  Order VI Rule 2 of the Code of Civil Procedure has not been
  defined in the Act or the Code of Civil Procedure. In our opinion
  all specific and primary facts which are required to be proved
E by a party for the relief claimed are material facts. It is settled
  legal position that all material facts must be pleaded by the party
  on which the relief is founded. Its object and purpose is to
  enable the contesting party to know the case which it has to
  meet. An election petition can be summarily dismissed if it does
F not furnish the material facts to give rise to a cause of action.
  However, what are the material facts always depend upon the
  facts of each case and no rule of universal application is
  possible to be laid down in this regard.

G      22. Bearing in mind the aforesaid legal position when we
  proceed to consider the facts of the present case we are of
  the opinion that the Election Petitioner had disclosed material
  facts and the matter is fit to go for trial. Whether those material
  facts are true or false is a matter of trial. As regards authorities
H of this Court in the case of Anil Vasudev Sa/gaonkar (supra)
       NANDIESHA REDDY v. KAVITHA MAHESH                     177
          [CHANDRAMAULI KR. PRASAD, J.]
and Ram Sukh (supra) we are of the opinion that the same            A
do not lend support to the contention of the appellant. In both
the cases this Court on fact came to the conclusion that the
election petition did not contain statement of material facts and
accordingly the election petitions were dismissed at the
threshold. However, in the present case, on facts we have found     B
that the election petition does contain material facts and it is
not liable to be dismissed at the threshold.

     23. Any observation made by us in this judgment is for the
purpose of disposal of these appeals and shall have no bearing      C
at the final decision of the election petition.

     24. Accordingly, we dismiss both the appeals with costs
of Rs.25,000/- to be paid by the appellant to the respondent.

R.P;                                       Appeals dismissed.       o