IMPORTANT POINT
In an election petition, all ‘material facts’ must be pleaded by the party in support of the case set up by him, 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.

Headnote:ELECTION LAW—Representation of the People Act, 1951—Sections 81, 82, 83, 100 and 123—Election petition—Dismissal on preliminary objection that it did not disclose material facts—Sustainability—Elections to the Legislative Assembly in State of Himachal Pradesh—Appellant submitted his nomination paper as a candidate of Indian National Congress Party and secured 27,600 votes while respondent who was set up by Bhartiya Janata Party got 27,651 votes—First respondent was declared successful candidate by a small margin of 51 votes—Appellant challenged election alleging that there were several irregularities and illegalities as also discrepancies in Voters List—In paragraph 8 of the Election Petition, appellant stated that as many as 188 votes had been wrongly counted though they were invalid/void votes which had materially affected result of election—High Court dismissed election petition holding that petition could not be said to be in accordance with Section 83(1)(a) of the Act and the defect could not be cured by amendment of the petition—High Court ordered striking down sub-paras (i), (ii), (iii) and (iv) of para 8 which resulted in rejection of Election Petition without entering into merits of the case—Whether High Court was justified in dismissing the election petition—(No)—High Court stepped into prohibited area of considering correctness of allegations and evidence—Civil Procedure Code, 1908—Order VII Rule 11(a).
       Held : 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 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 form in support of allegation of such practice and particulars thereof.(Para 27)
       All material facts, therefore, 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.(Para 28)
       We are unable to agree with the High Court. In our opinion, the 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.(Para 37)
       The approach of the High Court was not in 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. (Para 43)
       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). 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 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 only relevant facts required to be proved at the trial in order to establish the fact in issue.(Para 47)
       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 11(a) of 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.(Para 48)
       The High Court, in our considered opinion, 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 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. (Para 49)
       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 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(Para 51)
       (ii) ELECTION LAW—Representation of the People Act, 1951—Sections 83, 100, 123—Election Petition—Contents of election petition—Distinction between ‘material facts’ and ‘particulars’—All ‘material facts’ must be pleaded by the party in support of the case set up by him—Failure to state even a single material fact will entail dismissal of the suit or petition.
       Held : A distinction between ‘material facts’ and ‘particulars’, however, must not be overlooked. ‘Material facts’ are primary or basic facts which must be 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 take the opposite party by surprise. (Para 31)
       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 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.(Para 32)
       (iii) WORDS AND PHRASES—Expression ‘material facts’—Means those facts upon which a party relies for his claim or defence.
       Held : 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’, ‘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 plaintiff’s 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. (Para 29)

JUDGMENT

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 the first respondent that the Election Petition did not disclose material facts and was liable to be dismissed.

2. 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 said notification, the last date of filing of nomination papers was February 7, 2003, scrutiny - February 8, 2003, date of withdrawal – February 10, 2003, date of polling – February 26, 2003 and of counting of votes – March 1, 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 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.

3. According to the appellant, there were several irregularities and illegalities as also discrepancies in the Voters List. Electronic 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 10, 2003. In the said petition, he alleged that one 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.

4. In paragraph 8 of the Election Petition, the appellant stated that as many 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 of the election.

5. 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 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.

6. 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. The details of those votes had also been mentioned in the Election Petition itself.

7. In paragraph 8(iii), the appellant averred that 19 void votes had been polled. Even

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2006 Supreme(SC) 1271

IMPORTANT POINTIn an election petition, all ‘material facts’ must be pleaded by the party in support of the case set up by him, 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.

IMPORTANT POINT
In an election petition, all ‘material facts’ must be pleaded by the party in support of the case set up by him, 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.