JUDGMENT

R. M. SAHAI, J. :- Election of appellant to the Rajasthan State Assembly from constituency Kota was invalidated by the High Court for being guilty of corrupt practice within the meaning of sub-sections (2) and (4) of S. 123 of Representation of the People Act of 1951, (hereinafter referred to as the Act).

2. Basis for it was only a leaflet got printed by the appellant, the English translation of which is extracted below:

"Kachi Bastis shall be erased to the ground by buldozers.

"Threat by Shanti Dhariwal" Congress in its true colours. Posing as so-called benefactor of weak and downtrodden poor people, the Congress has come in its true colours.

Shanti Dhariwal threatened the Kanchi Basti people in Anantpura on 1-3-1985. That "Kachi Bastiwalo you have to cast your vote to Congress in the Assembly elections also as in the Lok Sabha elections. In case Jagdish Thade looses then I shall get the Kachi Basties bulldozed. I shall see your houses shall be razed to the ground."

You recognise their true faces. They are wolf in the skin of Jackals. They have started showing their blood soaked hands and blood thirsty jaws. The grip of Congress is tightening around your neck.

You have to ponder as to whether those give threats to raze your houses by bulldozers are entitled to get your vote.

Reply these Jackal threats by casting your vote on fifth March.

BJP with you in very struggle. Vote for BJP".

3. Did it relate to personal character or conduct of the Congress candidate, the primary ingredient of S. 123(4) of the Act? If it was then, was it false? And false to the knowledge of appellant? Did it amount to undue influence resulting in interference with free exercise of electoral right under S. 123(2)? According to the High Court it did as words their "inke" and they "inhone" used in the leaflet referred to the personal conduct of the candidate, and not to the party. The High Court further found that looking to the margin by which the appellant succeeded, i.e. 579 votes, the statement made was reasonably calculated to prejudice prospect of the Congress candidate. Even first part of the leaflet, that is, the extract of the speech, purported to have been delivered by the Congress M.P. was held to be false as it could not be established that any meeting took place. Election was found invalid, also because of undue influence exercised by making false representation that if Congress candidate was elected the houses shall be erased. Whether the High Court was justified in concluding that the statement in leaflet was false even though Shri Dhariwal from whose speech the purported extract was got printed, and Smt. Premlata the other Speaker were not examined and the statement of the appellant and his witnesses, DW-7 and DW-8 were disbelieved on an erroneous application of ratio in Surinder Singh v. Har Diyal Singh AIR 1985 SC 89 as evidence led by the appellant was not for proving corrupt practice, need not be gone into if the claim of the appellant that on the pleadings in the election petition filed under S. 83 read with S. 100 of the Act no triable issue arose is well founded, then the petition was liable to be dismissed under 0. 7 R. 11, Code of Civil Procedure. It is liable to be dismissed, even now in appeal as is clear from ratio in Hardwari Lal v. Karam Singh (1972) 2 SCR 742 if it is found that pleadings were insufficient or they were lacking in material particulars.

4. The submission that an election petition could be dismissed, apart from merit, only for one of the reasons mentioned in S. 86(l) is devoid of any substance. Dismissals visualised under S. 86 (1) are for lack of verification or presentation of petition beyond time or for defect in joinder of parties or for non-deposit of security for costs. These are defects in frame or presentation of petition. On the other hand dismissal for failure to disclose cause of action under 0. 7 R. 11 of Civil Procedure Code is in course trial. In Azhar Hussain v. Rajiv Gandhi, 1986 Suppl SCC 315 it