IMPORTANT POINTS
Death of an independent candidate cannot be a cause of action for declaring the election of the returned candidate to be void.
Bare allegations are not material facts.

JUDGMENT

R.M. Lodha, J.-Leave granted.

2. The two paragraphs - 7(A) and 7(D) - of the election petition occupied significant time of this Court on 3 days - February 7, 2012, February 9, 2012 and February 14, 2012 - to determine the correctness of the order dated June 21, 2011 passed by the Orissa High Court whereby the High Court directed that the election petition shall proceed in respect of the pleadings contained in these two paragraphs.

3. On the announcement of the 14th Assembly Election to the Orissa State Legislative Assembly, insofar as it related to 25-- Champua Assembly Constituency, the following schedule of election was notified:

4. As per the above schedule, on expiry of the time of withdrawal on April 8, 2009, the returning officer prepared and published the following list of contesting candidates.

5. It so happened that one of the contesting candidates at Sl. No. 9, namely, Akhila Kumar Mohanta, who was an independent candidate, died on April 13, 2009. His death was allegedly informed to the returning officer. However, his name continued to appear in the list of contesting candidates and was included in Electronic Voting Machine (EVM). The polling was held on April 23, 2009 in all 218 booths of the 25-Champua Assembly Constituency through EVM. The total votes recorded in the EVMs of 218 booths were 1,25,342 and postal ballots were

6. The first respondent (hereinafter referred to as `election petitioner') challenged the election of the appellant (hereinafter referred to as `returned candidate') by filing an election petition before the Orissa High Court. In paragraphs 7(A) to 7(G), the election petitioner set out the case for declaring the election of the returned candidate to be void and declare the election petitioner duly elected to the Orissa State Legislative Assembly from 25-Champua Assembly Constituency.

7. On service of the notice of the election petition, the returned candidate appeared and filed his written statement/reply traversing the pleadings set out in the election petition. The returned candidate also made an application under Order VI Rule 16 read with Section 151 and Order VII Rule 11 of the Code of Civil Procedure, 1908 (for short, `CPC') read with Section 86(1) of the Representation of the People Act, 1951 (for short, `1951 Act') with prayer to strike out/reject the pleadings made in paragraphs 7(A), 7(B), 7(C), 7(D), 7(E), 7(F) and 7(G) of the election petition and reject the election petition.

8. The High Court considered the above application made by the returned candidate and, after hearing the learned counsel for the election petitioner and the returned candidate, struck out paragraphs 7(B), 7(C), 7(E), 7(F) and 7(G) of the election petition by invoking its jurisdiction under Order VI, Rule 16(c) of CPC. However, the High Court ordered that the election petition shall proceed in respect of the remaining pleadings. In other words, the High Court permitted trial of the election petition on the pleadings set out in paragraphs 7(A) and 7(D).

9. The returned candidate is aggrieved by the above order to the extent trial of the election petition on the pleadings set out in paragraphs 7(A) and 7(D) has been ordered to be continued. According to the returned candidate, these two paragraphs do not set out the material facts to constitute cause of action under Section 100 (1)(d)(iii) and/or (iv) of the 1951 Act.

10. It may be stated immediately that the election petitioner has not challenged the order of the High Court striking out pleadings in paragraphs 7(B), 7(C), 7(E), 7(F) and 7(G).

11. We have heard Mr. C.A. Sundaram, learned senior counsel for the appellant - returned candidate and Mr. Mukul Rohatgi, learned senior counsel for respondent - 1 - the election petitioner.

12. We shall first take up the pleadings set out in paragraph 7(A) of the election petition which reads as follows :

"7(A) That Akhila Kumar Mohanta, who had filed nomination as an independent candidate and was assigned symb