Holding

An election petition that states the material facts required under Section 83(1)(a) cannot be dismissed on preliminary grounds for lack of full particulars, and the High Court erred by examining the merits and invoking estoppel.

Summary

The appellant, a defeated candidate in a Himachal Pradesh Legislative Assembly election, filed an election petition alleging several irregularities including votes cast by dead persons, double voting, voting in multiple constituencies, and double postal ballots, which he claimed materially affected the result. The High Court dismissed the petition on preliminary grounds, holding that the petition failed to disclose material facts and full particulars under Section 83 of the Representation of the People Act and that the petitioner was estopped from raising objections after the election. The Supreme Court examined whether the High Court was entitled to consider the merits of the allegations at the stage of maintainability and whether the lack of full particulars justified dismissal. It held that the petition did contain the requisite material facts, that the High Court erred by entering the merits and by invoking estoppel, and that the requirement of full particulars under Section 83(1)(b) applies only to corrupt practices, not to the allegations made. Consequently, the High Court's order was set aside, the election petition was restored, and the case was remitted to the High Court for trial on its merits. The appeal was allowed with costs.

Issues considered

Whether the election petition disclosed a cause of action and complied with Section 83(1)(a) of the Representation of the People Act, 1951.
Whether the petition lacked material facts and full particulars required under Section 83(1)(a) and (b) and thus was dismissible on preliminary grounds.
Whether the petitioner is estopped from seeking recount or other relief after the election result was declared.
Whether the High Court could consider the correctness of the allegations and evidence at the stage of determining maintainability.

Legislation cited

Code of Civil Procedure, 1908s. Order VII Rule 11
Representation of the People Act, 1951s. 100, s. 101, s. 62(4), s. 80, s. 80A, s. 81, s. 82, s. 83(1)(a), s. 83(1)(b), s. 86

Subjects

Election petitionMaterial factsSection 83Preliminary objectionEstoppelDouble votingPleading requirementsSection 86 amendmentHigh Court jurisdiction

Judgment

VIRENDER NATH GAUTAM A
v.
SATPAL SINGH AND ORS.

DECEMBER 8, 2006

[C.K. THAKKERAND R.V. RA VEENDRAN, JJ.] B

Representation of the People Act, 1951

Section 83(1)(a)-Election Petition-Contents of-Material facts pleaded
as required by Section 83 (I) of Act read with Order VJJ, Rule 1l(a) of Code C
of Civil Procedure, 1908 and cause of action disclosed-Held-At stage of
consideration maintainability of such a petition cannot be dismissed by
considering correctness of allegations and evidence in support of avetments
by entering into merits of case which is permissible only at stage of trial of
petition. D
Section 83(1)(a)-Election Petition-Contents of-Disclosure of material
facts-Allegation of double voting-Held-When law prevents a person from
exercising right ofvote more than once and it is alleged that there was double
voting in respect ofcertaifl persons, 'allegation' is complete-Whether election-
petitioner is able to prove that a/legation is matter of evidence which can E
be considered only at stage of trial-Also, whether voting papers were issued
twice, and those voters would have polled in favour of returned candidate
is immaterial-On such grounds, it cannot be said that material fact about
allegation regarding dou_ble voting had not been s_tated in Election Petition_
requiring it to be dismissed
F
Sections 83(1)(a), (b) and 86-Allegations about improper and illegal
reception and acceptance ofvotes-Held-Allegations did not pertain to corrupt
practice and election petitioner was required to state in Election Petition only
material facts and it was not necessary to set forth full particulars thereof-
Petition could not be dismissed on this ground especially as it could be qmended G
or amplified under Section 86 of the Act Section 83 (l)(b) found inapplicable.

Objections to elections-Taken in election petition after election was
J over and result declared-Consideration of-Held-They could not be
dismissed by invoking doctrine of estoppel.
413 II
'.
414 SUPREME COURT REPORTS [2006] SUPP. JO S.C.R.

A Words and phrases-Material facts-Jn context of Section 83 (1) (a) of
Representation of people Act, 1951.

Words and phrases-Distinction between facta probanda and facta
probantia.

B Appellant and first respondent were candidates in an election to a
State Legislative Assembly, wherein latter was declared successful by a
small margin of votes. Aggrieved by this, appellant filed an Election
Petition before High Court under Representation of the People Act, 1951
alleging (a) in para 8, that 188 votes were counted in spite of being invalid,
C and since the mar:gin of victory was only 51 votes, their counting materially
affected the result of the election (b) in para 8(i), that 37 votes of dead persons
had been cast, provided their names, death certificates of 36 persons, and
regarding the remaining one, Death Report issued by the Senior Medical
Officer, Zonal hospital (c) in para 8 (ii), that there was double voting by 60
· voters and provided details of those voters; it was also stated that out of 120
D votes (instead of 60) 104 votes were cast at booth Nos. 48 and 49 which were
in the native village of the first respondent (d) in para 8(iii), that votes 19
persons were void as they had voted in two constituencies, named those
constituencies, specified booth numbers where those votes were cast, and
details of voters (d) in para 8(iv), that six persons whose names were mentioned
in the Petition had voted twice thereby 12 votes had been polled and all of
E them should be treated as void.
Respondent filed a written statement controverting allegations and
averments in the Election Petition. He also raised preliminary objection
as to maintainability of petition contending inter alia that (i) petition lacked
F material facts and full particulars as required by law, the allegations
therein were vague and since the petition did not disclose cause of action,
it was liable to be dismissed on that ground alone (ii) as no objection had
been taken by the appellant at an appropriate stage, it was not open to
him to raise such contentions after the election was over and result was
declared.
G
The High Court found that the appellant had not disclosed all material
facts as (a) in para 8(i), there was nothing to show as to how many of those 37
votes were cast in favour of the first respondent, who cast them, and it was
not his case that he was unaware of death of those persons at the time of polling
or that it was a case of in personation of el~ctors or that the polling agent
H challenged identity of persons who allegedly voted for the dead electors; (b)
VIRENDER NATH GAUT AM v. SATPAL SINGH 415
almost the same reasons were applicable also to para 8 (ii); (c) in para 8(iii), A
it was not shown how the appellant came to know that those persons voted in
two different constituencies and who impersonated them; (d) in para 8{iv),
nothing was stated as to how and when appellant came to know about the six
persons having been issued double ballot papers; it was not his case that all
of those 12 ballot papers were counted in favour of the first respondent, and
that if those votes have been counted in his favour, the result could have been B
materially affected. On this basis, High Court held that the Election Petition
had not disclosed all material facts in accordance with section 83(1) (a) of the
act, and as the defect could not be amendment of the petition, ordered striking
down sub-paras (i), (ii), (iii) and (iv) of para 8. It also held that objections of
appellant were not maintainable as they were not raised at the relevant stage, C
and were raised only after he had lost the election. Election Petition was
dismissed without entering into merits of the case. Hence the present appeal.

Allowing the appeal, the Court

HELD 1.1. Material facts which are required to be pleaded in the Election D
Petition as required by Section 83 (I) of the Act read with Order VII, Rule
1 l(a) o the Code have been pleaded by the election-petitioner, cause of action
has been disclosed in the Election Petition and, hence, the petition could not
have been dismissed by the High Court The impugned order of the High Court
suffers from infirmity and cannot be sustained. (431-G)
E
1.2. The High Court stepped into prohibited area of considering
correctness of allegations and evidence in support of averments by entering
into the merits of the case which would be permissible only at the stage of
trial of the Election Petition and not at the. stage of consideration wh~ther .the
Election Petition was maintainable and dismissed the petition. The aid action, F
therefore, cannot be upheld and the order deserves to be set aside.
(431-H; 432-A)

1.3. The High Court was also not right in virtually invoking the doctrine
of estoppel and in dismissing the petition on that ground. (429-F)

2. The High Court had not dealt with at all paragraph 8 of the election G
petition in the impugned judgment. Only on this short ground the impugned
order deserves to be set aside. (428-H)

3.1. But even otherwise, the reasoning adopted and conclusions arrived
at by the High Court on sub-paras (i) to (iv) of para 8 are equally ill-conceived.
(429-AJ H
416 SUPREME COURT REPORTS (2006] SUPP. 10 S.C.R.

A 3.2. When the law prevents a person from exercising right of vote more
than once and it is alleged that there was double voting in respect of certain
persons, the 'allegation' can be said to be complete. Whether or not the
election-petitioner is able to prove that said allegation is a matter of evide11ce
which can be considered only at the stage of trial. By no stretch of imagination,
B however, it can be said that the material fact, that is, allegation regarding
double voting had not been stated in the Election petition which required
Election Petition to be dismissed on that ground. [430-C-D)

3.3. Whether or not six persons had been issued voting papers twice
and whether or not those voters had polled in favour of returned candidate
C cannot be said to be a material fact to be stated in the Election Petition.
What are required to be s.tated in the petition are material fact to maintain
the petition. [431-D)

4. One additional ground also, the order of the High Court is liable to
be set aside. All allegations in Para 8 of the Election Petition, as also sub-
D paras (i) to (iv) of para 8 relate to improper and illegal reception and acceptance
of votes and the election-petitioner has challenged the election of the returned
candidate on that ground and not on the ground of'corrupt practice'. He was,
therefore, required to state material facts in the Election Petition under
Section 83(1)(a) of the Act. It was, however, not necessary to 'set forth full
particulars', which is the requirement of Section 83(l)(b) of 'any corrupt
E practice'. The High Court dismissed the petition inter alia on the ground that
paras 8(i) to (iv) lacked in material particulars. Apart from the fact that the
law does not require material particulars even in respect of allegations of
corrupt practice but only full particulars and if they are lacking, the petition
can· be permitted to be amended or amplified under Section 86 of the Act, in
F the instant case, Clause (b) of Section 83(1) had no application and the petition
has been dismissed by the High Court by applying wrong test On that ground
also, the order passed by the High Court is unsustainable. (432-GI

Harkirat Singh v. Amrinder Singh, [2005) 13 SCC 5ll, referred to.

G 5.1. All material facts in accordance with the provisions of the Act have
to be set out in the election petition. If the material facts are not stated in a
petition, it is liable to be dismissed on that ground as the case would be covered
by clause (a) of Sub-Section (1) of Section 83 of the Act read with clause (a)
of Rule 11 of Order VII of the Code. [426-H; 427-AJ

H
VIRENDER NATH GAUTAM v. SATPAL SINGH 417
5.2. All 'material facts' must be pleaded by the party in support of the A
case set up by him. Since the object and purpose is to enable the opposite
party to know the case he has to meet with, in the absence of pleading, a party
cannot be allowed to lead evidence. Failure to state even a single material fact,
hence, will entail dismissal of the suit or petition. (428-C)

6.1. The expression 'material facts' has neither been defined in the B
Act nor in the Code. According to the dictionary meaning, 'material'
means 'fundamental', 'vital', 'basic', 'cardinal', 'central', 'crucial', 'decisive',
'essential', 'pivotal', 'indispensable', 'elementary' or 'primary'. The phrase
'material facts', therefore, may be said to be those facts upon which a party
relies for his claim or defence. In other words, 'material facts' are facts upon C
which the plaintiffs cause of action or the defendant's defence depends. What
particulars could be said to be 'material facts' would depend upon the facts of
each case and no rule of universal application can be laid down. It is, however,
absolutely essential that all basic and primary facts which must be proved at
the trial by the party to establish the existence of a cause of action or defence
are material facts and must be stated in the pleading by the party. [427-B-C) D
'Phillips v. Phillips, (1878) 4 QBD 127 and Bruce v. Odhams Press Ltd,
[1936) 1 All ER 287, referred to.

Burton's Legal Thesaurus, (Third edn.,) p. 349 referred to.
·, E
6.2. There is distinction between facta probanda (the facts required
to be proved, i.e. material facts) and facta probantia (the facts by means of
which they are proved, i.e. particulars or evidence). Pleadings must contain
only facta probanda and not facta _probantia. The material facts on which the
part relies for his claim are called facta probanda and they must be stated in
the pleadings. But the facts or facts by means of which facta probanda (material F
facts) are proved and which are in the nature of facta probanita (particulars
or evidence) need.not be set out in the pleadings. They are not facts in issue,
but only relevant facts required to be proved at the trial in order to establish
the fact in issue. (431-E-F(

Halsbury's Laws of England, (4th edn.); Vol. 36; para 38, referred to.
G

CIVIL APPELLATE JURISDICTION: Civil Appeal No. 809 of2005.

From the final Judgment and Order dated 20.12.2004 of the High Court
ofHimachal Pradesh at Shim la in E.P. No. 2of2003.
H
418 SUPREME COURT REPORTS [2006] SUPP. 10 S.C.R.

A E.C. Agrawala for the Appellant.

Rajiv Dutta, Naresh K. Shanna and Kumar Dushyant Singh for the
Respondents.

The Judgment of the Court was delivered by
B
C.K. THAKKER, J. This appeal is filed by the appellant against the
judgment and order dated December 20, 2004 passed by the High Court of
Himachal Pradesh, Shimla in Election Petition No. 2 of 2003. By the said
order, the High Court upheld the preliminary objection raised by th.e first
respondent that the Election Petition did not disclose material facts and was
C liable to be dismissed.

The case of the appellant is that the Election Commission of India
notified the programme for the elections to the Legislative Assembly in the
State of Himachal Pradesh scheduled to be held in February, 2003. As per the
D said notification, the last date of filing of nomination papers was February 7,
2003, scrutiny - February 8, 2003, date of withdrawal February IO, 2003,
date of polling February 26, 2003 and of counting of votes-March I, 2003.
• According to the appellant, he submitted his nomination paper as a candidate
of Indian National Congress Party on February 26, 2003 from 32 Una
Assembly Constituency. Respondent No. 1 was set up by Bhartiya Janata
E Party and contested the election from the said constituency. At the counting,
according to the appellant, he secured 27,600 votes while the first respondent
got 27,651 votes. Thus, by a small margin of 51 votes, the first respondent
was declared successful candidate.

According to the appellant, there were several irregularities and
F illegalities as also discrepancies in the Voters List. li:lectronic Voting Machines
which were employed were defective; many void votes had been polled;
there were cases of double voting and all those illegalities vitiated the election
and materially affected the result thereof. The appellant, therefore, filed an
Election Petition on April IO, 2003. In the said petition, he alleged that one
G Tek Chand Thakur was the Returning Officer for the constituency in question.
At the time of counting, the appellant requested the Returning Officer that he
had come to know that many void votes had been cast and they should be
deleted from counting, but the Returning Officer expressed his inability and ..
helplessness to do so stating that there was no such mechanism in the Electronic
Voting Machines.
H
VIRENDERNATHGAUTAMv. SATPALSINGH[C.K. THAKKER,J.] 419

In paragraph 8 of the Election Petition, the appellant stated that as many A
as 188 votes had been wrongly counted though they were invalid/void votes.
In the Election Petition itself, the appellant had given details of all such votes.
He also stated that since the margin of votes between the defeated candidate
and the returned candidate was only 51 votes and the wrong counting of
votes amounted to 188 invalid/void votes, it had materially affected the result B
of the election.

In para 8(i), he stated that as many as 37 votes of dead persons have
been cast and they should not have been counted. The appellant had given
names of those dead persons along with numbers in the voters' list. Death
certificates of 36 persons were filed as Annexure EP-3 to EP-38. He stated that C
the Gram Panchayat concerned had not issued death certificate in respect of
one Mukesh Kumar. He, therefore, annexed Death Report along with a
forwarding letter dated April 7, 2003 in respect of deceased Mukesh Kumar
issued by the Senior Medical Officer, Zonal Hospital, Una District, Una. The
appellant also stated that out of 37 votes, 30 votes had been polled in booth
Nos. 48 and 49, in the native village of the first respondent-returned candidate. D

In paragraph 8(ii), the appellant alleged that as many as 60 double votes
had been cast which was in contravention of the provisions of Section 62(4)
of the Representation of the People Act, 1951 (hereinafter referred to as "the
Act"). Thus, 120 votes had been counted though voters were only 60. It was
in violation of the statutory provision and those votes were, therefore, void. E
The details of those votes had also been mentioned in the Election Petition
itself.

In paragraph 8(iii), the appellant averred that 19 void votes had been
polled. Even though all those persons cast their votes in booth Nos. 76 and F
63 of Kutlehar-33 Constituency, in Una 32 Constituency, the same voters
had again cast their votes. The appellant has given details of those voters
in the Election Petition. According to the appellant, the returned candidate
was the beneficiary of those void votes and since the margin was small, the
result had been materially affected.
G
In paragraph 8(iv), the appellant had alleged that material irregularities
had been committed by the Returning Officer while counting Postal Ballot
Papers. Six persons named in the petition had sent double Postal Ballot
Papers. So instead of six votes, twelve votes had been cast.

According to the appellant, irregularities and illegalities mentioned in H
420 SUPREME COURT REPORTS [2006] SUPP. 10 S.C.R.

A paragraph 8 had materially affected the result of the election. Had there been
proper voting and counting, the appellant would have secured more number
of votes than the first respondent. On the above grounds, a prayer was made
by the appellant to call for the record of the Electronic Voting Machines, to
inspect all polled votes of 32 Una Assembly Constituency and of booth Nos.
B 76 and 36 of Kutlehar-33 Assembly Constituency, to order re-counting, to
set aside and declare election of the first respondent void and to declare
appellant as duly elected candidate from 32 Una Constituency. Other reliefs
were also prayed for.

A written statement was filed by the respondent controverting facts
C stated, allegations leveled and averments made in the Election Petition. He
denied all the allegations of the appellant. He also raised a preliminary objection
as to maintainability of petition contending inter alia that as no objection had
been taken by the appellant at an appropriate stage, it was not open to him
to raise such contentions after the election was over and result was declared.
It was further contended that the petition had not been properly verified as
D required by law and the appellant had not disclosed the names of persons
from whom he had received information as to averments made in sub-
paragraphs (i) to (iv) of para 8 of the petition. The first respondent also
asserted that the petition lacked material facts and full particulars as required
by law. The allegations in the petition were vague and did not disclose
E sufficient grounds for re-counting for which prayer was made. According to
the first respondent, since the petition did not disclose cause of action, it was
liable to be dismissed on that ground alone. Apart from that, even on merits,
nothing could be pointed out which would enable him to claim any of the
reliefs sought in the Election Petition and the petition was liable to be
dismissed.
F
In replication, the appellant submitted that the objections raised by the
first respondent-returned candidate were ill-founded and reiterated what he
had stated in the main petition. According to him, allegations were not vague,
but self-explanatory and based on material facts and full particulars.

G On the basis of the pleadings, the High Court framed eight issues. The
High Court, however, treated issues Nos. 5, 6 and 8 as preliminary issues.
Since, we are concerned in the instant case only with regard to preliminary
issues, they may be re-produced.

5. Whether the election petition does not disclose any cause of
H action?
- VIRENDERNATHGAUTAMv. SATPALSINGH[C.K. THAKKER,J.]

6. Whether the petition lacks in material facts and particulars, as
421

A
contemplated under Section 83 of the Representation of People
Act?
8. Whether the petitioner is estopped from claiming recounting of
votes?

The High Court then heard the learned counsel for the parties on the
B
above three issues. The High Court noted that it was contended by the
learned counsel for the returned candidate that the Election Petition did not
disclose cause of action by placing on record material facts on which the
defeated candidate relied in support of the challenge made by him and the
petition was liable to be dismissed. The High Court considered the relevant C
provisions of the Act as also the leading decisions of this Court and passed
the following order;

"For the reasons recorded above, the election petition cannot be
said to be in accordance with Section 83(l)(a) of the Act being bereft
of primary facts to complete the cause of action. The defect cannot D
be cured even by amendment of the petition.

To conclude, the petitioner has not disclosed all material facts and
has withheld the same. In the absence of such facts, a roving inquiry
cannot be permitted. There is no dispute that if para 8 sub-paras (i)
to (iv) are deleted, nothing survives in the election petition for putting E
the petition for trial.
·t
For the aforesaid reasons, para 8 sub-paras (i), (ii), (iii) and (iv) are
struck down being vague, indefinite and lacking in material particulars.
After striking down of the said paras, nothing survives in the election
petition. The petition is rejected with costs quantified at Rs. 5000/-. F
(emphasis supplied)

Regarding 37 votes of dead persons, the High Court observed that
according to the appellant, 30 such votes out of 37 votes were cast in booth
Nos. 48 an<l 49 which was in the native place of the first respondent-returned G
candidate. The Court stated that so far as that allegation was concerned, there
was not a word as to how many of those votes were cast in favour of the
returned candidate and who cast those votes. The Court proceeded to observe
that the defeated candidate did not say that he raised any objection when
electoral rolls were prepared or revised under Section 21 of the Representation H
A
422 SUPREME COURT REPORTS [2006) SUPP. 10 S.C.R.

of the People Act, 1950.
--
The Court then stated;

"The defeated candidate does not say that he was not aware of
the entries of the dead persons in the Electoral Roll which, in my view,
B is a material fact and ought to have been pleaded".

The High Court also observed that there was not a word, a whisper that
the polling agents challenged the identity of the persons who allegedly voted
for dead electors. No reason was put forward as to why it was not challenged.
In the opinion of the High Court, it was a material fact which ought to have
C been pleaded to enable elected candidate to meet the challenge. According
to the High Court, when the appellant had given particulars of dead persons
for whom the voting right was exercised by impersonation, he must have
known at the time of polling that those electors were dead. If he was not
aware, he ought to have stated as to when and how he came to know about
D 37 voters whose names appeared in the electoral rolls and how by personation
votes were polled. There was no allegation that the votes cast due to
impersonation of the dead persons were managed by the returned candidate
or his supporters or election agent. The said allegation thus lacked material
facts. Omission to mention those material facts rendered the cause of action
incomplete, observed the High Court.
E According to the High Court, merely because the returned candidate had
won by a narrow margin, it could not be a reason for inspection of ballot
papers or re-counting of votes.

Regarding 60 persons alleged to have exercised right to vote twice in
the same constituency In booth Nos. 48 and 49, thereby resulting in 120 void
F votes in Una 32 Constituency, the High Court observed that the Election
Petition was silent as to when and how the appellant came to know about the
persons having cast their votes in different booths in the same constituency.
He did not state who impersonated for those persons in the other booth. The
appellant also did not say precisely as to when he came to know that 60
G persons had voted twice.

As to 19 persons alleged to have voted in two different constituencies,
the High Court observed that the allegations were not supported by material
facts. Even though the pleading indicated that the defeated candidate was
aware of the persons who voted twice at the same constituency and in
H different constituencies, neither he nor any person on his behalf raised any
VlRENDER NATH GAUTAM v. SATPAL SINGH [C.K. THAKKER, J.] 423
objection at the relevant time. He also did not disclose the source of A
infonnation regarding casting of void votes which was a material fact. Only
a bald assertion had been made which was not sufficient.

Regarding double voting in para 8(iv) while counting postal ballot
papers, it was the case of the appellant that instead of six votes, twelve votes
were cast because of double Postal ballots. The High Court observed that the B
appellant had given details of those persons including the vote number, yet
it held the allegation on the face of it was "bereft of material facts" and
presumptuous. The High Court observed that the allegation would not lead
to the conclusion that in fact those six persons cast their votes twice and it
materially affected the result of returned candidate. It was also not stated in C
the petition that those six persons had been issued double postal ballot
papers and that all the twelve ballot papers were counted in favour of the
returned candidate. According to the High Court, it was a material fact and
sini::e it was not stated, the cause of action was not complete.

The High Court, therefore, concluded; D
"The allegations made by the defeated candidate are vagye,
indefinite, bereft of material facts. It is not precisely stated as to how
many void votes were cast in favour of the returned candidl!te and
if such void votes were not counted in his favour, the defeated
candidates would have been elected." E
On the basis of the said reasons, the High Court held that the Election
Petition could not be said to be in accordance with Section 83(l)(a) of the Act
and the defect could not be cured by amendment of the petition. Since the
appellant had not disclosed all material facts, no roving inquiry could be
pennitted. The High Court, therefore, ordered striking down sub-paras (i), (ii), F
(iii) and (iv) of para 8 which resulted in rejection of the Election Petition
without entering into merits of the case.

On February 14, 2005, notice was issued by this Court. Interim order
was also passed to the effect that Electronic Voting Machines used in two
polling booths of 32- Una Assembly Constituency and Booth Nos. 63 and 76 G
of 33-Kutlehar Assembly Constituency be preserved until further orders.
The appeal was thereafter ordered to be placed for final hearing.

We have heard the learned counsel for the parties.

H
424 SUPREME COURT REPORTS [2006] SUPP. 10 S.C.R.

A The learned counsel for the appellant contended that the High Court
has committed an error of law in dismissing the Election Petition at the
threshold without entering into merits of the matter on the ground that it did
not set out material facts in the Election Petition and failed to disclose cause
of action and as such it was liable to be dismissed. According to the learned
B counsel, not only material facts had been set out in the Election Petition, but
full particulars had also been mentioned. The High Court was, therefore, not
right in dismissing the petition without entering into the correctness or
otherwise of the allegations and averments in the petition. The counsel,
therefore, submitted that the appeal deserves to be allowed by setting aside
the order of the High Court and by remitting the Election Petition to be
C decided on merits.

The learned counsel for the respondents, on the other hand, supported
the order passed by the High Court. He submitted that the law requires that
material facts and full particulars ought to have been stated in the petition.
Failure to do so would result in dismissal of the petition and since material
D facts and full particulars had not been mentioned in the Election Petition, the
High Court was right in upholding the preliminary objection of maintainability
of petition raised by the returned candidate and in dismissing the petition. He
also subll!itted that the High Court was right in observing that at the relevant
stage, no objection was taken either by the defeated candidate or by his
E election agent and only after the appellant had Jost the election that he.came
forward by raising all technical objections. He, therefore, prayed for dismissal
of the appeal by affinning the order of the High Court.

Before we deal with the contentions of the parties, it would be
appropriate if we refer to the relevant provisions of the Act The·Preamble of
F the Act declares that the Act has been enacted "to provide for the conduct
of elections of the Houses of Parliament and to the House or Houses of the
Legislature of each State, the qualifications and disqualifications for
membership of those Houses, the corrupt practices and other offences at or
in connection with such elections and the decision of doubts and disputes
arising out of or in connection with such elections".
G
Part I is Preliminary. Part II deals with qualifications and disqualifications
for membership of Parliament and of State Legislatures. While Part III provides
for issuance of notifications for elections, Part IV relates to administrative
machinery for the conduct of elections. Sections ~9 and 60 lay down manner
H and procedure of voting. Section 61 prescribes special procedure for preventing
VIRENDER NATH GAUTAM v. SATPAL SINGH [C.K. THAKKER, J.] 425

personation of electors. Section 62 relates to right to vote. It is a material A
provision and may be quoted in extenso;

62. Right to vote:(!) No person who is not, and except as expressly
provided by this Act, every person who is, for the time being
entered in the electoral roll of any constituency shall be entitled
to vote in that constituency. B
(2) No person shall vote at an election in any constituency if he is
subject to any of the disqualifications referred to in section 16
of the Representation of the People Act, 1950 (43 of 1950).

(3) No person shall vote at a general election in more than one C
constituency of the same class, and if a person votes in more
than one such constituency, his votes in all such constituencies
shall be void.
(4) No person shall at any election vote in the same constituency
more than once, notwithstanding that his name may have been
registered in the electoral roll for the constituency more than D
once, and if he does so vote, all his votes in that constituency
shall be void.
(5) No person shall vote at any election ifhe is confined in a prison,
whether under a sentence of imprisonment or transportation or
otherwise, or is in the lawful custody of the police; E
Provided that nothing in this sub-section shall apply to a person
subjected to preventive detention under any law for the time
being in force.

(6) Nothing contained in sub-sections (3) and (4) shall apply to a F
person who has been authorized to vote as proxy for an elector
under this Act in so far as he votes as a proxy for such elector.

Conduct of elections has been dealt with in Part V. Part VI relates to
'Disputes regarding elections'. Section 80 requires any election to be
questioned only by way of Election Petition. Under Section 80A, it is the High G
Court which can try election petitions. Section 81 provides for presentation
of election petition and prescribes the period of limitation. Section 82 declares
as to who shall be joined as respondents to such Election Petition. Section
83 deals with contents of petition and· reads thus-

83. Contents of petition.(!) An Election petition- H
426 SUPREME COURT REPORTS [2006) SUPP. to S.C.R.

A (a) shall contain a concise statement of the material facts on which
the petitioner relies;

(b) shall set forth full particulars of any corrupt practice that the
petitioner alleges including as full a statement as possible of the
names of the parties alleged to have committed such corrupt
B practice and the date and place of the commission of each such
practice; and

(c) shall be signed by the petitioner and verified in the manner laid
down in the Code of Civil Procedure, 1908 (5 of 1908) for the
verification of pleadings:
c provided that where the petitioner alleges any corrupt practice, the
petition shall also be accompanied by an affidavit in the prescribed
form in support of the allegation of such corrupt practice and the
particulars thereof.

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

Section 100 enumerates grounds for declaring election to be void which
inter alia includes improper reception, refusal or ejection of any vote or the
reception of any vote which is void or there is non-compliance with the
E provisions of the Constitution or of the Act or Rules or orders made under
the Act. Section l 0 l empowers the High Court to declare a candidate other
than the returned candidate to have been elected. Section 123 declares certain
practices as "deemed to be corrupt practices".

From the relevant provisions of the Act reproduced hereinabove, it is
F clear that an election petition must contain a concise statement of 'material
facts' on which the petitioner relies. It should also contain 'full particulars'
of any corrupt practice that the petitioner alleges including a full statement
of names of the parties alleged to have committed such corrupt practice and
the date and place of commission of such practice. Such election petition shall
be signed by the petitioner and verified in the manner laid down in the Code
G of Civil Procedure, 1908 (hereinafter referred to as "the Code") for the verification
of pleadings. It should be accompanied by an affidavit in the prescribed fonn
in support of allegation of such practice and particulars thereof.

All material facts, therefore, in accordance with the provisions of the
H Act, have to be set out in the election petition. If the material facts are not
VIRENDER NATH GAUTAM v. SATPAL SINGH [C.K. THAKKER, J.] 427
stated in a petition, it is liable to be dismissed on that ground as the case A
would be covered by clause (a) of sub-section {I) of Section 83 of the Act
read with clause (a) of Rule 11 of Order VII of the Code.

The expression 'material facts' has neither been defined in the Act nor
in the Code. According to the dictionary meaning, 'material' means
'fundamental', 'vital', 'basic', 'cardinal', 'central', 'crucial', 'decisive', B
'essential', 'pivotal', indispensable', 'elementary' or 'primary'. {Burton's Legal
Thesaurus, (third edn.); p.349]. The phrase 'material facts', therefore, may be
said to be those facts upon which a party relies for his claim or defence. In
other words, 'material facts' are facts upon which the plaintiffs cause of
action or the defendant's defence depends. What particulars could be said C
to be 'material facts' would depend upon the facts of each case and no rule
of universal application can be laid down. It is, however, absolutely essential
that all basic and primary facts which must be proved at the trial by the party
to establish the existence of a cause of action or defence are material facts
and must be stated in the pleading by the party.
D
In the leading case of Phillips v. Phillips, (1878) 4 QBD 127: 48 LJ QB
135, Cotton, L.J. stated:

"What particulars are to be stated must depend on the facts of
each case. But in my opinion it is absolutely essential that the pleading,
not to be embarrassing to the defendants, should state those facts E
which will put the defendants on their guard and tell them what they
have to meet when the case comes on for trial."

In Bruce v. Odhams Press Ltd., (1936) 1KB697: [1936] 1 All ER287,
Scott, L.J. referring to Phillips v. Phillips observed:
F
"The cardinal provision in Rule 4 is that the statement of claim
must state the material facts. The word 'material' means necessary for
the purpose of formulating a complete cause of action; and if any one
'material' statement is omitted, the statement of claim is bad; it is
'demurrable' in the old phraseology, and in the new is liable to be
'struck out' under R.S.C. Order 25 Rule 4 (see Phillips v. Phillips); G
or 'a further and better statement of claim' may be ordered under Rule
7."

A distinction between 'material facts' and 'particulars', however, must
not be overlooked. 'Material facts' are primary or basic facts which must be H
(•
428 SUPREME COURT REPORTS [2006] SUPP. 10 S.C.R.

A pleaded by the plaintiff or by the defendant in support of the case set up by
him either to prove his cause of action or defence. 'Particulars', on the other
hand, are details in support of material facts pleaded by the party. They
amplify, refine and embellish material facts by giving distinctive touch to the
basic contours of a picture already drawn so as to make it full, more clear and
more informative. 'Particulars' thus ensure conduct of fair trial and would not
B take the opposite party by surprise.

All 'material facts' must be pleaded by the party in support of the case
set up by him. Since the object and purpose is to enable the opposite party
to know the case he has to meet with, in the absence of pleading, a party
C cannot be allowed to lead evidence. Failure to state even a single material fact,
hence, will entail dismissal of the suit or petition. Particulars, on the other
hand, are the details of the case which is in the nature of evidence a party
would be leading at the time of trial.

In Halsbury's Laws of England, (4th edn.); Vol.36; para 38, it has been
D stated;

"The function of particulars is to carry into operation the overriding
principle that the litigation between the parties, and particularly the
trial, should be conducted fairly, openly and without surprises, and
incidentally to reduce costs. This function has been variously stated,
E namely either to limit the generality of the allegations in the pleadings,
or to define the issues which have to be tried and for which discovery
is required. Each party is entitled to know the case that is intended
to be made against him at the trial, and to have such particulars of
his opponent's case as will prevent him from being taken by surprise.
Particulars enable the other party to decide what evidence he ought
F to be prepared with and to prepare for the trial. A party is bound by
the facts included in the particulars, and he may not rely on any other
facts at the trial without obtaining the leave of the court."

In para 8, the election-petitioner has asserted that as many as 188 votes
G have been wrongly counted in spite of the fact that all those votes were
invalid/void votes. He had also stated that since the margin of votes between
the defeated candidate and the successfu I candidate was only 51, wrong
counting of 188 invalid/void votes 'materially affected' the result of the
election. The High Court had not dealt with at all paragraph 8 in the impugned
judgment. Only on this short ground, in our opinion, the impugned order
H deserves to be set aside.
VIRENDER NATH GAUTAM v. SATPAL SINGH [C.K. THAKKER, J.] 429

But even otherwise, the reasoning adopted and conclusions arrived at A.
by the High Court on sub-paras (i) to (iv) of para 8 are equally ill-conceived.
In para S(i), the election-petitioner has stated that 37 votes of dead persons
had been cast and they were thus void votes and could not have been
counted. Not only the election-petitioner had given the names of all 37
persons, but had also annexed death certificates of 36 persons along with the B
Election Petition in the form of Annexures EP 3 to EP 38. Regarding the
remaining one, he had stated that the Gram Panchayat had not issued death
certificate, but Death Report issued by the Senior Medical Officer, Zonal
Hospital, Una had been annexed at Annexure EP 39.

The High Court, dealing with the allegation in para S(i) has observed C
that there was nothing to show and not a word as to how many of those 37
votes were cast in favour of the returned candidate and who cast those votes.
It was also observed that the defeated candidate never raised any objection
at the time of polling and at the stage of filing Election Petition, it was not
open to raise an objection. It was further observed that it was not the case
of the election-petitioner that he was not aware of death of those persons at D
the time of polling and it was a case of personation of electors within the
meaning of Section 61 of the Act. There was also not a whisper, observed
the High Court that the polling agent had challenged the identity of the
persons who allegedly voted for the dead electors. The High Court also
stated that it was not stated in the Election Petition that the returned candidate E
or his supporters or election agent managed to have votes cast by
impersonation. All these facts, according to the High Court, were material
facts and since they were not stateci in the Election Petition, the petition was
defective.

We are unable to agree with the High Court. In our opinion, the p
considerations which weighed with the High Court were in the nature of
'evidence ' which is a matter to be considered and proved at the time of trial.
The High Court was also not right in virtually invoking the doctrine of
estoppel and in dismissing the petition on that ground.

Regarding allegations in para S(ii) of the Election Petition, the election- G
petitioner has alleged that there was double voting by 60 voters which was
in violation of section 62(4) of the Act. The details of those voters have been
mentioned in the petition. It was also stated that out of 120 votes (instead
of 60) 104 votes were cast at booth Nos. 48 and 49 which were in the native
village of the first respondent.
H
430 SUPREME COURT REPORTS [2006] SUPP. 10 S.C.R.

A The High Court almost for the same reasons on which it ordered deletion
of para 8(i}, has also ordered to delete para 8(ii). It observed that the petition
was significantly silent as to when and how the election-petitioner came to
know about the persons having cast their votes twice in two different booths
in the same constituency. He also did not say who impersonated for those
B persons in the other booth. Nothing was stated as to when the petitioner
precisely came to know about the fact that 60 persons had cast their votes
twice in different booths and no reasons was put forward as to why no
objection was raised at the relevant time. All these facts, according to the
High Court, were material facts and since they were not stated, the petition
was defective.
c With respect, the High Court is not right. When the law prevents a
person from exercising right of vote more than once and it is alleged that there
was double voting in respect of certain persons, the 'allegation' can be said
to be complete. Whether or not the election-petitioner is able to prove the
said allegation is a matter of evidence which can be considered only at the
D stage of trial. By no stretch of imagination, however, it can be said that the
material fact, that is, allegation regarding double voting had not been stated
in the Election Petition which required Election Petition to be dismissed on
that ground.

As to para 8(iii), the case of the election-petitioner was that 19 void
E votes had been cast. The said votes being void since 19 persons had exercised
their right to vote in two constituencies, i.e. in Una 32 Constituency as also
in booth No 76 and 63 of Kutlehar 33 Constituency. The details of those
voters have been mentioned in the Election Petition.

F The High Court held that material facts had not been stated and observed
that it was not shown as to how the petitioner came to know about the
persons listed having voted in two different constituencies and who
impersonated them.

As already observed earlier, the approach of the High Court was not in
G consonance with law and the High Court entered into prohibited area of
considering the correctness of the allegation which is to be considered and
adjudicated at the time of trial.

Finally, in para S(iv), the election-petitioner has alleged that there wa:;
material irregularity in counting postal ballot papers by the Returning Officer.
H According to the election-petitioner, six persons whose names have been
VIREN DER NA TH GAUTAM v. SATPAL SINGH [C.K. THAKKER, J.) 431
mentioned in the Election Petition had voted twice thereby 12 votes had been A
polled. All those 12 votes, therefore, should be treated as void.

The High Court observed thflt the allegation, on the face of it, was
'bereft of material particulars' and the allegation presumptuous. It observed
that nothing was stated as to how and when the defeated candidate came to
know about the six persons having been issued double ballot papers. The B
said fact was material to enable the returned candidate to meet with the
allegation of the defeated candidate. It was also not the case of the election-
petitioner that all those 12 ballot papers were counted in favour of the
returned candidate and that if those votes have been counted in favour of
the petitioner, the result could have been materially affected. c
On the basis of our conclusions and reasoning in respect of para 8(i)
to (iii), the finding of the High Court on para 8(iv) also cannot be said to be
in consonance with law. Whether or not six persons had been issued voting
papers twice and whether or not those voters had polled in favour of returned
candidate cannot be said to be a material fact to be stated in the Election D
Petition. What are required to be stated in the petition are material facts to
maintain the petition.

There is distinction between facta probanda (the facts required to be
proved, i.e. material facts) andfacta probantia (the facts by means of which
they are proved, i.e. particulars or evidence). It is settled law that pleadings E
must contain only facta probanda and notfacta probantia. The material facts
on which the party relies for his claim are called facta probanda and they
must be stated in the pleadings. But the facts or facts by means of which
facta probanda (material facts) are proved and which are in the nature of
facta probantia (particulars or evidence) need not be set out in the pleadings. F
They are not facts in issue, but only relevant facts required to be proved at
the trial in order to establish the fact in issue.

In our considered opinion, material facts which are required to be
pleaded in the Election Petition as required by Section 83 (1) of the Act read
with Order VII, Rule l l(a) of the Code have been pleaded by the election- G
petitioner, cause of action has been disclosed in the Election Petition and,
hence, the petition could not have been dismissed by the High Court. The
impugned order of the High Court suffers from infirmity and cannot be
sustained.

The High Court, in our considered opinion, stepped into prohibited area H
432 SUPREME COURT REPORTS [2006) SUPP. 10 S.C.R.

A of considering correctness of allegations and evidence in support of avennents
by entering into the merits of the case which would be permissible only at
the stage of trial of the Election Petition and not at the stage of consideration
whether the Election Petition was maintainable and dismissed the petition.
The said action, therefore, cannot be upheld and the order deserves to be set
aside.
B
On an additional ground also, the order of the High Court is liable to
be set aside. All allegations in Para 8 of the Election Petition, as also sub-
paras (i) to (iv) of para 8 relate to improper and illegal reception and acceptance
of votes and the election-petitioner has challenged the election of the returned
C candidate on that ground and not on the ground of 'corrupt practice'. He was,
therefore, required to state material facts in the Election Petition under Section
83(l)(a) of the Act. It was, however, not necessary to 'set forth full particulars',
which is the requirement of Section 83(l)(b) of 'any corrupt practice'.

The High Court dismissed the petition inter alia on the ground that
D paras 8(i) to (iv) lacked in material particulars. Apart from the fact that the
law does not require material particulars even in respect of allegations of
corrupt practice but only full particulars and if they are lacking, the petition
can be pennitted to be amended or amplified under Section 86 of the act, in
the instant case, Clause (b) of Section 83(1) had no application and the
petition has been dismissed by the High Court by applying wrong test. On
E that ground also, the order passed by the High Court is unsustainable [Vide
Harkirat Singh v. Amrinder Singh,· [2005] 13 SCC 511 ].

For the foregoing reasons, the appeal deserves to be allowed and is,
accordingly, allowed with costs. The order passed by the High Court is set
F aside. The Election Petition No. 2 of 2003 is restored to file, and is remitted
to the High Court to decide the same on merits. Since the election took place
in February, 2003 and the petition was dismissed on preliminary ground as not
maintainable and is required to be decided on merits, the High Court is
requested to give priority and dispose it of expeditiously.

G vs. Appeal allowed.