Holding

An election petition that fails to state the material facts required by Section 83(1)(a) and lacks the prescribed affidavit is liable to be dismissed at the threshold under Section 86.

Summary

Ram Sukh, a losing candidate in the 2007 Uttarakhand Legislative Assembly election, filed an election petition challenging the election of Dinesh Aggarwal on grounds of alleged corrupt practices and procedural lapses by the Returning Officer. The High Court dismissed the petition at the preliminary stage, holding that it lacked a concise statement of material facts as required by Section 83(1)(a) of the Representation of the People Act, 1951, and was not supported by the mandatory affidavit for corrupt practice allegations. On appeal, the Supreme Court affirmed that omission of even a single material fact defeats the cause of action and justifies dismissal under Section 86, and that the petition also failed to demonstrate how the alleged omission materially affected the election result under Section 100(1)(d)(iv). The Court further held that the trial court could rightly use Order VI Rule 16 and Order VII Rule 11 of the Code of Civil Procedure to reject the petition without a trial. Consequently, the appeal was dismissed, leaving the election result undisturbed.

Issues considered

The petition complied with the requirement of a concise statement of material facts under Section 83(1)(a) of the Representation of the People Act, 1951.
Whether the absence of a mandatory affidavit for corrupt practice allegations warrants dismissal under Section 86.
Whether the alleged non‑circulation of the election agent's signature materially affected the election result under Section 100(1)(d)(iv).
Whether the High Court could dismiss the petition at the threshold without giving the petitioner an opportunity to adduce evidence, invoking Order VI Rule 16 and Order VII Rule 11 of the CPC.

Legislation cited

Code of Civil Procedure, 1908s. Order VII Rule 11, s. Order VI Rule 16, s. Order VI Rule 17, s. Order VI Rule 6, s. Order VI Rule 7
Indian Evidence Act, 1872
Representation of the People Act, 1951s. 100(1)(d)(iv), s. 81, s. 82, s. 83(1)(a), s. 83(1)(c) proviso, s. 86, s. 87, s. 98

Subjects

election petitionmaterial factscorrupt practiceaffidavitRepresentation of the People ActSection 83Section 86Section 100threshold dismissalCode of Civil Procedure

Judgment

[2009] 14 (ADDL.). S.C.R. 836

A RAM SUKH
v.
DINESH AGGARWAL
(Civil Appeal No. 6128 of 2008)
SEPTEMBER 18, 2009
B
[D.K. JAIN AND H.L. DATTU, JJ.]

REPRESENTATION OF THE PEOPLE ACT, 1951:

c s. 83(1)(a), proviso, ss.86 and 100(1)(d) - State
Legislative Assembly elections - Election petition seeking to
declare the election of returned candidate as void on the
ground of corrupt practices - High Court dismissing election
petition at preliminary stage for lack of material facts and
0 particulars and for want of requisite affidavit in support of
a/legations of corrupt practices - HELD: All facts which are
essential to clothe the petition with complete cause of action
must be pleaded and omission of a single material fact would
amount to disobedience of the mandate of s.83(1)(a) -
E Proviso to s.83(1)(a) mand12tes that election petition alleging
corrupt practices must be accompanied by an affidavit in
support of such allegation - Election petition must be
dismissed if it suffers from any such vice - In the instant case,
pleading is vague and does not spell out as to how the
election results were materially affected - The facts stated in
F election petition fall short of being "materiai facts" as
contemplated ins. 83(1)(a) to constitute a complete cause of
action in relation to allegation uls 100(1)(d)(iv) - View taken
by High Court upheld - s.83(1)(a) and (b) - Expressions
,.
"material facts" and "particulars" - Connotation of and
G distinction between - Explained.

s.87 - Scope of- HELD: By virtue of s.87, provisions of
CPC apply to trial of an election petition and in the absence
of anything to the ·contrary in the Act, court trying an election
H 836
RAM SUKH v. DINESH AGGARWAL 837

petition can act in exercise of its power under CPC including A
0.6, r.16 and 0. 7, r.11- Code of Civil Procedure, 1908- 0.
6, r.16, 0.7, r.11.

WORDS AND PHRASES:

Expressions "material facts" and "particulars" - B
Connotation of in the context of Election Law.

The appellant was a candidate for election to the
State Legislative Assembly of Uttrakhand held on
21.2.2007. He lost the election to respondent no. 1. He c
filed an election petition before the High Court
challenging the election of the returned candidate.
Respondent no. 1 filed an application under 0. 6, rr. 16
and 17 and 0. 7, r. 11 of the Code of Civil Procedure, 1908
read with s.86 of the Representation of the People Act, D
1951 raising a preliminary objection to the maintainability
of writ petition, inter alia, on the grounds that the petition
was lacking in material facts and particulars and was also
defective for want of requisite affidavit in support of
allegations of. corrupt practice and that since it did not
disclose any cause of action, it deserved to be dismissed E
at the threshold. It was contended that on account of
failure on the part of the election petitioner to file an
affidavit in support of the allegations, the entire election
petition was liable to be dismissed; and allegations of
corrupt practices made in paragraphs 14, 17, 19, 20 as F
21 also the ground D and E of the election petition were
liable to be struck off. The High Court dismissed the
election petition.
... In the instant appeal filed by the election petitioner, G
it was contended for the appellant that the High Court
should not have exercised its power either under 0. 6, r.
16 or 0. 7, r.11 of the Code of Civil Procedure, 1908 to
reject the election petition at the threshold. It was
H
838 SUPREME COURT REPORTS [2009] 14 (ADDL.) S.C.R.

A submitted: (i) that even if the election petition was liable
to be dismissed, it should have been dismissed only after "
affording an opportunity to the election petitioner to
adduce evidence in support of allegation in the petition
and (ii) that rejection of petition at the threshold would
B amount to reading into sub-section (1) of s.86 an
additional ground.

Dismissing the appeal, the Court

HELD: 1.1. In Jagan Nath*, this Court has held that the
c statutory requirement of election/law must be strictly
observed; that the election contest is not an action at law
or a suit in equity, but is purely statutory proceeding
unknown to the common law and that court possesses
no common law power. It is also well settled that the
D success of a candidate who has won at an election
.should not be lightly interfered with and any petition ~

seeking such interference must strictly conform to the
requirements of the law. Nevertheless, it ··is a;so to be
borne in mind that one of the essentials of the election
E law is to safeguard. the pu1·ji.y of the election process and,
therefore, the courts must zealously ensure that people
do not get elected by flagrant breaches of that law or by
indulging in corrupt practices, as enumerated in the
Representation of the People Act, 1951. [Para 7] [846-F- {

F H; 847-A]
*Jagan Nath Vs. Jaswant Singh and Ors. [1954] S.C.R.
892, relied on.
Ravinder Singh vs. Janmeja Singh & Ors. 2000 (8) SCC
G 191, referred to.
1.2. Section 83, the pivotal provision for the instant
case, requires that: (a) the election petition must contain
a concise statement of "material facts" on which
petitioner relies and (b) he should also set fo1·th "full
H
RAM SUKH v. DINESH AGGARWAL 839

• particulars" of the alleged corrupt practices. Proviso to A
clause (c) of sub-section (1) of s. 83 also provides 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 particlllars thereof. Thus, ·the B
requirement of disclosure of "material facts" and "full
particulars" as stipulated in the Section is mandatory.
Section 86 mandates that where the election petition
does not comply with the provisions of s.81 or s.82 or
s.117 of the Act, the High Court should dismiss .the c
election petition. [Para 9] [850-D-F]

2.1. The phrase "material facts" has neither ~een
.)
. defined in the Act nor in the Code of Civil Procedure, 1908
and, therefore, it has been understood by the cou$ in
., general terms to mean the entire bundle of facts w~ich D
would constitute a complete cause of action. T~us,
"material facts" are facts upon which the plaintiffs c~use
of action or defendant's defence depends. [Para 12] (851-
D]
E
Mahadeorao Sukaji Shivankar Vs. Ramaratan Bapu &
Ors. (2004) 7 SCC 181 and Samant N. Balkrishna & Ant: Vs.
George Fernandez & Ors. (1969) 3 SCC 238, relied otl.
'
2.2. In order to appreciate the real object and purport
of the phrase "material facts", particularly, with reference F
to election law, it would be appropriate to notice
distinction between the phrases "material facts" as
appearing in clause (a) and "particulars" as appearing in
clause (b) of sub-section (1) of s.83. "Material facts" are
primary or basic facts which have to be pleaded by the G
petitioner to prove his cause of action and by the
defendant to prove his defence. "Particulars", on the
other hand, are details in support of the material facts,
pleaded by the parties. They amplify, refine and embellish
H
840 SUPREME COURT REPORTS [2009] 14 (ADDL.) S.C.R.
..
A 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. Unlike "material facts"
which provide the basic foundation on which the entir~ ,,,,,.
edifice of the election petition is built, "particulars" are to
B be stated to ensure that opposite party is not taken by
surprise. [Para 14] [852-D-F]

Virender Nath Gautam Vs. Satpal Singh & Ors. (2007) 3 "-
sec 617, relied on.
c 2.3. Omission of a single material fact would lead ito
incomplete cause of ~ction and an election petition
without the material facts is not an election petition at all.
Therefore, all the facts which are essential to clothe the <: -
petition with complete cause of action must be pleaded
D and omission of even a single material fact would amount "
to disobedience of the mandate of s. 83(1)(a) of the Act
and an election petition can be and must be dismiss~d if
it suffers from any such vice. [Para 18] (854-G; 855-A-B]

Hardwari Lal Vs. Kanwal Singh (1972) 1 SCC 214;
E
Hussain Vs. Rajiv Gandhi 1986 (Supp) SCC 315 and Udhav
Singh Vs. Madhav Rao (1977) 1 SCC 511, relied on.
f
2.4. In order to get an election declared as void under
the provisions of s~100 (1 )(d) of the Act, the election
F petitioner must aver that on account of non-compliance
\Yith the provisions of the Constitution or of the Act or of
any rules or orders made under the Act, the result of the
election, insofar as it concerned the returned 'candidate,
was materially affected'; and the averments in the election
G petition must disclose material facts so as to constitute
a complete cause of action. In the instant case, the
allegation of the election petitioner is that the Returning
Officer failed to circulate the attested signatures of his
election agent to various polling stations and, therefore,
H
RAM SUKH v. DINESH AGGARWAL 841

failed to comply with para 12 of Chapter VII of the A
Handbook for Returning Officers. No doubt, instructions
contained in the Handbook for the Returning Officers are
issued by the Election Commission in exercise of its
statutory functions and are, therefore, binding on the
Returning Officers; and they are obliged to follow them B
in letter and spirit. But, in the instant case, the pleading
in this regard is vague and does not spell out as to how
the election results were materially affected. The facts fall
short of being "material facts" as contemplated in
s.83(1 )(a) of the Act to constitute a complete cause of c
action in relation to allegation u/s 100(1)(d)(iv) of the Act.
It is not the case of the election petitioner that in the
absence of his election agent there was some
malpractice at the polling stations during the polling. For
purpose of s.100(1 )(d)(iv), it was necessary for the D
election petitioner to aver specifically in what manner the
result of the election insofar as it concerned respondent
_) no. 1, was materially affected due to the said omission on
the part of the Returning Officer. Unfortunately, such
averment is missing in the election petition. Therefore, the
Election Tribunal/High Court was justified in coming to E
the conclusion that statement of material facts in the
election petition v·as completely lacking and the petition
was liable to be rejected at the threshold on that ground.
The view taken by the High Court is upheld. [Para 20 and
21] [855-G-H; 856-A-B; 856-F-G; 857-8-E] F

3. By virtue of s.87 of the Act, the provisions of the
Code apply to the trial of an election petition and,
therefore, in the absence of anything to the contrary in
the Act, the court trying an election petition can act in G
exercise of its power under the Code, including Order VI
Rule 16 and Order VII Rule 11 of the Code. The object of
both the provisions is to ensure that meaningless
litigation, which is otherwise bound to prove abortive,
should not be permitted to occupy the judicial time of the H
--+
842 SUPREME COURT REPORTS [2009) 14 (ADDL.) S.C.R.

~
,.
A courts, and the provisions must apply with greater vigour
\-
in election matters where the pendency of an election 1

petition is likely to inhibit the elected representative of the '
people in the discharge of his public duties for which the
Electorate have reposed confidence in him. [Para 17] p
'
B [853-G-H; 854-A-B] ·-
I

Case Law Reference:
~
2000 (8) sec 191 referred to para 4 ,,._

[1954] S.C.R. 892 relied on para 7
c >--
(2004) 1 sec 181 relied on para 12
(1969) 3 sec 238 relied on para 13
(2007) 3 sec 617 relied on para 15 '-
r
D '(

(1972) 1 sec 214 relied on para 17
1986 (Supp) sec 315
(1977) 1 sec 511
relied on
relied on'
I
para 18
para 18
•
E CIVIL APPELLATE.JURISDICTION : Civil Appeal No.
6128 of 2008.

From the Judgment & Order dated 15.1.2008 of the High ;
Court of Uttarakhand at Nainital in Election Petition No. 3 of
F 2007.

Chandra Shekhar, Sanjay Tyagi, Saurabh Upadhyay and
S.K. Verma for the Appellant.

The Judgment of the Court was delivered by
G
D.K. JAIN, J. 1. This appeal under Section 116A of the ~

Representation of the People Act, 1951 (for short the 'Act') is
directed against the judgment and order dated 15th January,
2008, rendered by the High Court of Uttaranchal at Nainital in
Writ Petition No.03 of 2007 (MIS). By the impugned order, the
H
RAM SUKH v. DINESH AGGARWAL [D.K. JAIN, J.] 843

... High Court, upholding the preliminary objection raised by the A
first respondent, has dismissed the election petition mainly on
the ground that It did not comply with the mandatory requirement
of furnishing material facts so as to disclose cause of action
and was not supported by an affidavit in the prescribed form.
B
2. Election to the State Legislative Assembly of Uttaranchal
(now Uttarakhand) was held on 21st February, 2007. The
results were declared on 27th February, 2007. The first
-< respondent, who had contested the election as an Indian
National Congress candidate, was declared elected. The
appellant (hereinafter referred to as the 'election petitioner') C
having lost the election, as a candidate of the Nationalist
Congress Party, challenged the election of the first respondent
by filing an election petition under Section 80 read with Section
100(1)(b) and (d) of the Act. The election of the returned
y candidate was challenged mainly on the grounds: · D

(i) that the election petitioner having submitted 2 sets
of the requisite Form-8 (Praroop-8) in respect of his
election agent Manbir Singh Dagur before the
Returning Officer, who having obtained the E
signatures of the election petitioner as also of the
polling/election agent in proforma (Anulagnak-22),
deliberately did not send the signed Anulagnak-22
of the election petitioner to different polling stations,
with the result that his polling agent was not F
permitted by the polling officer to act as such on the
date of polls;

(ii) that the Returning Officer deliberately delayed the
distribution of Anulagnak-22 at various polling
stations and on account of inaction on his part, G
election petitioner's supporters got confused and
either did not vote or voted in favour of the first
respondent, an Indian National Congress
candidate;
H
844 SUPREME COURT REPORTS [2009] 14 (ADDL.) S.C.R.

A (iii) that the first respondent put pressure on the election ,,
petitioner to withdraw from the contest and on his
refusal to do so, a rumour was spread by the first
respondent that the election petitioner had
withdrawn from the election fray and thus the first
B respondent used corrupt practice;

(iv) that the first respondent got a fabricated 'Fatva'
from Devband circulated among the Muslim voters
asking them to cast votes in his favour and thus the .,._
Muslim voters were unduly influenced by the
c issuance of the aforesaid religious Fatva - a corrupt
practice;

(v) that the Polling Officers at various polling stations
did not seal Electronic Voting Machines in
D presence of the election agent of the election
petitioner and other candidates and further before'
the commencement of counting the Returning
Officer did not get the seal of strong room certified
from any of the polling agents; and
E
(vi) that the Electronic Voting Machines of various
polling stations were either changed or were used
after the polling time was over, showing misuse of
the official machinery in support of the first"
respondent and, thus, putting a question mark on
F the fairness of the election.

3. The first respondent on being served with notice,
instead of filing a written statement, filed an application under
Order VI Rules 16 and 17 and Order VII Rule 11 of the Code
G of Civil Procedure, 1908 (in short 'the Code') read with Section
86 of the Act raising a preliminary objection to thei
maintainability of the petition, inter-alia, on the ground that the
petition was lacking in material facts and particulars and was
also defective for want of requisite affidavit in support of
H allegations of corrupt practice and that since it did not disclose
RAM SUKH v. DINESH AGGAR'vVAL [D.K. JAIN, J.] 845

... any cause of action, it deserved to be dismissed at the A
threshold. It was pleaded that on account of failure on the part
of the election petitioner to file an affidavit in support of his
~
allegations, the entire election petition was liable to be
. dismissed and allegations of corrupt practices made in
paragraphs 14, 17, 19, 20 and 21 as well as grounds D and E B
of the election petition were liable to be struck off.

4. On consideration of the rival stands, the High Court
came to the conclusion that the allegations of corrupt practices
are entirely superfluous in nature; the concise statement of
material facts is completely lacking and mandatory requirement c
of an affidavit in support of the allegations of corrupt practices
was also not complied with. Relying on the decision of this
(
Court in Ravinder Singh vs. Janmeja Singh & Ors.1, the High
Court came to the conclusion that non-filing of affidavit in
">
support of the allegation of corrupt practices, is an incurable D
and fatal defect and, therefore, the election petition was liable
to be rejected on that ground as well. Aggrieved, the election
petitioner is before us in this appeal.

5. In spite of service, the first respondent - the elected E
candidate has not entered appearance. Therefore, we heard
learned counsel appearing on behalf of the election petitioner.

"' 6. It was submitted by learned counsel for the election
petitioner that the High Court has committed an error of law as
t
well as of procedure in entertaining first respondent's F
application and dismissing the election petition at the threshold.
It was contended that the question whether "material facts", as
contemplated in Section 83 of the Act, had been stated or not,
cannot be decided without providing an opportunity to the
election petitioner to prove his case upon trial. Learned counsel G
\..
argued that if an election petition is rejected at the threshold
on account of non-compliance with Section 83 of the Ad, it
would amount to reading into Section 86 an additional ground

~
1. 2000 (B) sec 191 H
~
~
846 SUPREME COURT REPORTS [2009] 14 (ADDL.) S.C.R.

A for dismissal of the election petition which cannot be permitted
in law. Relying on the Handbook for Returning Officers issued "'
by the Election Commission of India for the guidance of the
Returning Officers in the conduct of elections, learned counsel •
submitted that the instructions so issued are binding on the
B Returning Officers and, therefore, having obtained the specimen
signatures of the appellant and his election agent, it was
obligatory on the part of the Returning Officer to circulate these
specimen signatures to all the Presiding Officers in the
prescribed performa in terms of Para 12 of Chapter VII of the >--

said Handbook. It was contended that this omission on the part
c of the Returning Officer had materially affected the election
result. However, the learned counsel fairly conceded that since
the election petitioner did not file ttie affidavit as required under
proviso to sub-section (1) of Section 83 of the Act, he was not
pressing the ground pertaining to corrupt practice. Therefore,
D
the issue surviving for consideration is only in relation to alleged 'f

violation of Section 100(1)(d)(iv) of the Act.
...,
7. Before examining the merits of the issues raised on ?

"
behalf of the election petitioner with reference to the relevant
)

E statutory provisions, it would be appropriate to bear in mind the
observations of this Court in Jagan Nath vs. Jaswant Singh
and Ors. 2 Speaking for the Constitution Bench, Mehr Chand
Mahajan, C.J., had said that the statutory requirement of election
law must be strictly observed and that the election contest is -(

F not an action at law or a suit in equity, but is purely statutory
proceeding unknown to the common law and that Court
possesses no common law power. It is also well settled that
the success of a candidate who has won at an election should \
J-
not be lightly interfered with and any petition seeking such
G interference must strictly conform to the requirements of the
law. Nevertheless, it is also to be borne in mind that one of the
essentials of the election law is to safeguard the purity of the
election process and, therefore, the courts must zealously
ensure that people do not get elected by flagrant breaches of
H 2. [1954] S.C.R 892 '1
,_
RAM SUKH v. DINESH AGGARWAL [D.K. JAIN, J.] 847

., that law or by indulging in corrupt practices, as enumerated in A
the Act.

8. In this backdrop, we may now turn to the procedural
I
provisions in the Act insofar as they are relevant for our
ii(
purpose:-
B
"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
candidate at such election or any elector within forty-five c
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.
D
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.

***** E

(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 F
the petition.

83. Contents of petition.-(1) An election petition-

(a) shall contain a concise statement of the material facts
on which the petitioner relies; G
(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
H
848 SUPREME COURT REPORTS [2009] 14 (ADDL.) S.C.R.

A of the commission of each such practice; and
J,

(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:

B 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.

c (2) Any schedule or annexure to the petition shall also be
signed by the petitioner and verified in the same manner
as the petiti_on.

86. Trial of election petitions.-(1) The High' Court shall
dismiss an election petition which does not comply with
D the provisions of section 81 or section 82 or section 117.

Explanation.-An order of the High Court dismissing an
election petition under this sub-section shall be deemed
to be an order made under clause (a) of section 98.
E
(2) As soon as may be after an election petition has been
presented to the High Court, it shall be referred to the
Judge or one of the Judges who has or have been ,
assigned by the Chief Justice for the trial of election ;

petitions under sub-section (2) of section BOA.
F --:
(3) Where more election petitions than one are presented
to the High Court in respect of the same election, all of
thel"!l shall be referred for trial to the same Judge who may,
in his discretion, try them separately or in one or more
G groups.

(4) Any candidate not already a respondent shall, upon
application made by him to the High Court within fourteen

days from the date of commencement of the trial and
H
RAM SUKH v. DINESH AGGARWAL [D.K. JAIN, J.] 849

.., subject to any order as to security for costs which may be A

- made by the High Court, be entitled to be joined as a
respondent.

Explanation.-For the purposes of this sub-section and of
section 97, the trial of a petition shall be deemed to B
commence on the date fixed for the respondents to appear
before the High Court and answer the claim or claims
made in the petition.

(5) The High Court may, upon such terms as to costs and
otherwise as it may deem fit, allow the particulars of any c
corrupt practice alleged in the petition to be amended or
amplified in such manner as may in its opinion be
necessary for ensuring a fair and effective trial of the
petition, but shall not allow any amendment of the petition
which will have the effect of introducing particulars of a D
corrupt practice not previously alleged in the petition.

(6) The trial of an election petition shall, so far as is
practicable consistently with the interests of justice in
respect of the trial, be continued from day to day until its
E
conclusion, unless the High Court finds the adjournment of
the trial beyond the following day to be necessary for
reasons to be recorded.
;><

(7) Every election petition shall be tried as expeditiously
as possible and endeavour shall be made to conclude the F

trial within six months from the date on which the election 1
petition is presented to the High Court for trial.

87. Procedure before the High Court.-(1) Subject to the
G
provisions of this Act and of any rules made thereunder,
every election petition shall be tried by the High Court, as
nearly as may be, in accordance with the procedure
applicable under the Code of Civil Procedure, 1908 (5 of
1908) to the trial of suits:
H
850 SUPREME COURT REPORTS [2009] 14 (ADDL.) S.C.R.

A Provided that the High Court shall have the discretion to
refuse, for· reasons to be recorded in writing, to examine "'
'
any witness or witnesses if it is of the opinion that the
evidence of such witness or witnesses is not material for
the decision of the petition or that the party tendering such
B witness or witnesses is doing so on frivolous grounds or
with a view to delay the proceedings.

(2) The provisions of the Indian Evidence Act, 1872 (1 of
1972), shall, subject to the provisions of this Act, be
deemed to apply in all respects to the trial of an· election
c petition."

9. From the afore-quoted provisions, it would appear that
Section 81 enables a petitioner to c~ll in question any election
on one or more of the grounds specified in sub-section (1) of
D Section 100 of the Act. Section 83, the pivotal provisi0n for the
present case, requires that: (a) the election petition must
contain a concise statement of "material facts" on which
petitioner relies and (b) he should also set forth "full particulars"
of any corrupt practices which the petitioner alleges. Proviso
E to clause (c) of sub-section (1) of Section 83 also provides 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. It is plain that the --1,
F requirement of disclosure of "material facts" and "full particula~;,
as stipulated in the Section is mandatory. Section 86 mandates
that where the election petition does not comply with the
provisions of Section 81 or $ection 82 or Section 117 of the
Act, the High Court should dismiss the election petition. Section
87 which lays down the procedure required to be followed by
G
the High Court while trying an election petition, requires that
every election petition shall be tried, as nearly as may be, in
accordance with the procedure applicable under the Code to
the trial of the suits, subject of course to the provisions of the
Act and of any requirement made thereunder.
H
RAM SUKH v. DINESH AGGARWAL [D.K. JAIN, J.] 851

1'
10. It is evident that controversy in this appeal lies in a A
narrow compass. It revolves around the ambit of Section 83 of
the Act. The point for consideration is whether the election
petition lacked "material facts" required to be stated in the
election petition in terms of Section 83(1) of the Act and if so,
could it be dismissed summarily without trial? B I

11. As already noted, it is mandatory that all "material
facts" are set out in an election petition and it is also trite that
if material facts are not stated in the petition, the same is liable
to be dismissed on that ground alone. Therefore, the question
is as to whether the election petitioner had set out "material c
facts" in his petition?

12. The phrase "material facts" has neither been defined
in the Act nor in the Code and, therefore, it has been
understood by the courts in general terms to mean the entire D
bundle of facts which would constitute a complete cause of
action. In other words, "material facts" are facts upon which the
plaintiffs cause of action or defendant's defence depends.
(See: Mahadeorao Sukaji Shivankar vs. Ramaratan Bapu &
Ors. 3). Broadly speaking, all primary or basic facts which are E
necessary either to prove the cause of action by the plaintiff or
defence by the defendant are "material facts". Material facts are
facts which, if established, would give the petitioner the relief
~
asked for. But again, what 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.
F

13. The requirement in an election petition as to the
.. statement of material facts and the consequences of lack of
such disclosure with reference to Sections 81, 83 and 86 of
the Act came up for consideration before a three-Judge Bench G
of this Court in Samant N. Balkr/shna & Anr. vs. George
Fernandez & Ors. 4 Speaking for the three~Judge Bench, M.

3. (2004) 1 sec 1a1.
4. (19690 3 sec 238. H
852 SUPREME COURT REPORTS [2009] 14 (ADDL.) S.C.R.

A Hidayatullah, C.J., inter-alia, laid down that: (i) Section 83 of
the Act is mandatory and requires first a concise statement of
material facts and then the fullest possible particulars; (ii)·
omission of even a single material fact leads to an incomplete
cause of action and statement of claim becomes bad; (iii) the
8 function of particulars is to present in full a picture of the cause
of action and to make the opposite party understand the case
he will have to meet; (iv) material facts and particulars are
distinct matters - material facts will mention statements of fact
and particulars will set out the names of persons with date, time
c and place and (v) in stating the material facts it will not do
merely to quote the words of the Section because then the
efficacy of the material facts will be lost:

14. At this juncture, in order to appreciate the real object
and purport of the phrase "material facts", particularly with
D reference to election law, it would be appropriate to notice
distinction between the phrases "material facts" as appearing
in clause (a) and "particulars" as appearing in clause (b) of sub-
section (1) of Section 83. As stated above, "material facts" are
primary or b~sic facts which have to be pleaded by the
E petitioner to prove his cause of action and by the defendant to
prove his defence. "Particulars", on th~ other hand, are details
in support of the material facts, pleaded by the parties. They
amplify, refine and embellish material facts by giving distinctive
touch to the basic contours of a picture aiready drawn so as to
F make it full, more clear and more informative. Unlike "material
facts" which provide the basic foundation on which the entire
edifice of the election petition is built, "particulars" are to be
stated to ensure that opposite party is not taken by surprise.

15. The distinction between "material facts" and
G "particulars" and their requirement in an election petition was
succinctly brought out by. this Court in Virender Nath Gautam
vs. Satpal Singh & Ors. 5, wherein C.K. Thakker, J., stated thus:
(SCC p.631, para 50)

H s. c2001) 3 sec 617.
RAM SUKH v. DINESH AGGARWAL [D.K. JAIN, J.] 853

;: "50. There is distinction between facta probanda (the facts A
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 B
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 c
only relevant facts required to be proved at the trial in order
to establish the fact in issue."

16. Now, before excimining the nval submissions in the light
of the afore-stated legal position, it would be expedient to deal
\

with another submission of learned counsel for the appellant D
that the High Court should not have exercised its power either
under Order VI Rule 16 or Order VII Rule 11 of the Code to
reject the election petition at the threshold. The argument is two-
fold viz. (i) that even if the election petition was liable to be
dismissed ultimately, it should have been dismissed only after E
affording an opportunity to the election petitioner to adduce
evidence in support of his allegation in the petition and (ii) since
Section 83 does not find a place in Section 86 of the Act,
• rejection of petition at the threshold would amount to reading
into sub-section (1) of Section 86 an additional ground. F

17. In our opinion, both the contentions are misconceived
and untenable. Undoubtedly, by virtue of Section 87 of the Act,
the provisions of the Code apply to the trial of an election
petition and, therefore, in the absence of anything to the contrary G
in the Act, the court trying an election petition can act in exercise
of its power under the Code, including Order VI Rule 16 and
Order VI I Rule 11 of the Code. The object of both the provisions
is to ensure that meaningless litigation, which is otherwise
bound to prove abortive, should "nt be pennitted to occupy the
H
854 SUPREME COURT REPORTS [2009] 14 (ADDL.) S.C.R.

A judicial time of the courts. If that is so in matters pertaining to
ordinary civil litigation, it must apply with greater vigour in
election matters where the pendency of an election petition is
likely to inhibit the elected representative of the people in the
discharge of his public duties for which the Electorate have
B reposed confidence in him. The submission, therefore, must fail.
Coming to the second limb of the argument viz., absence of
Section 83 in Section 86 of the Act, which specifically provides
for dismissal of an election petition which does not comply with
certain provisions of the Act, in our view, the issue is no longer
c res-integra. A similar plea was negatived by a three-Judge
Bench of this Court in Hardwari Lal vs. Kanwal Singh6, wherein
speaking for the Bench, AN. Ray, J. (as His Lordship then was)
said: (SCC p.221, para 23)

"23. Counsel on behalf of the respondent submitted that
D ari election petitlon could not be dismissed by reason of
want of material facts because Section 85 of the Act
conferred power on the High Court to dismiss the election
petition which did no! ~omply with the provisions of Section '
81, or. Section 82 or Section 117 of the Act. It was
E emphasised that Section 83 did not find place in Section
- 86. Under Section 87 of the Act every election petition shall
be tried by the High Court as nearly as may be in
accordance with the procedure applicable under the Code
of Civil Procedure, 1soa. to the trial cf suits. A suit which
F does not furnish cause of action can be dismissed." .
18. The issue was again dealt with by this Court in Azhar
Hussain vs. Rajiv Gandhi7. Referring to earlier
· pronouncements of this C9urt in Samant N. Balkrishna (supra)
and Udhav Singh vs. Madhav, Rao Scindia 8 wherein it was
~ observed that the omission of a single material fact would lead
to incomplete cause of action and that an election petition
s. {1972) 1 sec 214.
7. 1986 (supp) sec 315.
H s. {1977) 1 sec 511.
RAM SUKH v. DINESH AGGARWAL [D.K. JAIN, J.] 855

without the material facts is not an election petition at all, the A
... f
Bench held that all the facts which are essential to clothe the
petition with complete cause bf action must be pleaded and
omission of even a single material fact would amount to
disobedience of the mandate of Section 83(1 )(a) of the Act and
an election petition can be and must be dismissed if it suffers B
from any such vice.

19. We may now advert to the facts at hand to examine
whether the election petition suffered from the vice of non-
disclosure of material facts as stipulated in Section 83(1)(a) of
the Act. As already stated the case of the election petitioner is
c
confined to the alleged violation of Section 100(1)(d)(iv). For
the sake of ready reference, the said provision is extracted
below:

"100. Grounds for declaring election to be void.-(1) D
Subject to the provisions of sub-section (2) if the High Court
is of opinion- -

*****

(d) that the result of the election, in so far as it concerns E
a returned candidate, has been materially
affected-

*****
F
(iv) by any non-compliance with the provisions of the
Constitution or of this Act or of any rules or orders
made under this Act, the High Court shall declare
the election of the returned candidate to be void."

20. It is plain that in_ order to get an election declared as G
> void under the said provision, the election petitioner must aver
that on account of non-compliance with the provisions of the
Constitution or of this Act or of any rules or orders made under -
the Act, the result of the election, insofar as it concerned the
returned candidate, was materially affected. As already stated, H

l
\.
856 SUPREME COURT REPORTS (2009) 14 (ADDL.) S.C.R.

A in the present case, the allegation of the election petitioner is
that the Returning Officer failed to circulate the attested
signatures of his election agent to various polling stations and,
therefore, failed to comply with para 12 of Chapter VII of the
Handbook for Returning Officers. The pleadings in the election
B petition, in relation to grounds (i) ana (ii), extracted in para 2
above, were as under:

"11. That due to aforesaid inaction of the Returning Officer
the polling agent of the petitioner was not permitted to
function till 3.00 P.M. by which time more than 80% polling
c was over. This inaction on the part of Returning Officer
materially affected the election as almost all other polling
agents of the petitioner working in other polling stations got
confused and supporters of the petitioner either returned
back or voted for congress candidate.
D
12. That the Returning Officer was duty bound to send
required Praroop of the petitioner and his agent's signature
one day before the day of e.lection which he did not do.
Due to his inaction of the Returning Officer the election of
E 13 Laxman Chowk Legislative Assembly Constituency
was materially affected."

21. There is no quarrel with the proposition that the
instructions contained in the Handbook for the Returning ..
Officers are issued by the Election Commission in exercise of
F its statutory functions and are, therefore, binding on the
Returning Officers. They are obliged to follow them in letter and
spirit. But the question for consideration is whether the afore-
extracted paragraphs of the election petition disclose material
facts so as to constitute a complete cause of action. In other
G words, the question is whether the alleged omission on the part
of the Returning Officer ipso facto "materially affected" the
election result. It goes without saying that the averments in the
said two paragraphs are to be read in conjunction with the
preceding paragraphs in the ele~tion petition. What is stated
H in the preceding paragraphs, as can be noticed from grounds
RAM SUKH v. DINESH AGGARWAL [D.K. JAIN, J.] 857

(i) and (ii) reproduced above, is that by the time specimen A,
signature of the polling agent were circulated 80% of the polling
was over and because of the absence of the polling agent the
voters got confused and voted in favour of the first respondent.
In our opinion, to say the least, the pleading is vague and does
not spell out as to how the election results were materially B
affected because of these two factors. These facts fall short of
being "material facts" as contemplated in Section 83(1)(a) of
the Act to constitute a complete cause of action in relation to
allegation under Section 100(1)(d)(iv) of the Act. It is not the
case of the election petitioner that in the absence of his election c
agent there was some malpractice at the polling stations during
the polling. It needs little reiteration that for 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 insofar as
it concerned the first respondent, was materially affected due 0
to the said omission on the part of the Returning Officer.
Unfortunately, such averment is missing in the election petition.
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 completely lacking and the E
petitkm was liable to be rejected at the threshold I
on that
ground. We have, therefore, no hesitation in upholding the view
taken by the High Court.

22. Consequently, this appeal, being devoid of any merit,
fails and is dismissed accordingly. Since the first respondent F
remained unrepresented, there will be no order as to costs.

R.P. Appeal dismissed.