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SUPREME COURT OF INDIA
KURIAN JOSEPH, A.M. KHANWILKAR, JJ.
KULDEEP SINGH PATHANIA – APPELLANTS
VERSUS
BIKRAM SINGH JARYAL – RESPONDENTS
CIVIL APPEAL NO. 4080 OF 2014
Decided On : 24-01-2017
(B) Representation of the People Act, 1951 – Sections 83(1)(a), 86(1) and 100(1)(d)(iii) – Civil Procedure Code, 1908 – Order 7 Rule 11(a) read with Order 14 Rule 2(2) – Election petition – Cause of action – Issue relates to an enquiry under Order 7 Rule 11(a) of Code and there is no question of a preliminary issue being tried under Order 14 Rule 2(2) of the Code – Court exercised its jurisdiction only under Section 83(1)(a) of the Act read with Order 7 Rule 11(a) of Code – Since the scope of enquiry at that stage has to be limited only to pleadings of plaintiff, neither written statement nor averments filed by opposite party for rejection under Order 7 Rule 11(a) of Code or any other pleadings of respondents can be considered for that purpose – Petition has disclosed a cause of action and it is not necessary to remit petition for a fresh enquiry in that regard – Impugned order set aside and election petition remitted to High Court to try it on merits. (Paras 9, 12 and 13)
Facts of Case:
Election matter. Appellant is a losing candidate. Appellant is aggrieved since his petition has been dismissed, based on findings on preliminary issues that election petition lacked in material facts as required under Section 83(1)(a) of the 1951 Act and as such, did not disclose any cause of action.
Findings of Court:
As we have been taken through averments in election petition and we are satisfied that petition has disclosed a cause of action, it is not necessary to remit petition for a fresh enquiry in that regard.
Impugned order set aside and election petition remitted to High Court to try it on merits expeditiously and being one filed in the year 2013, preferably within a period of four months.
Result : Appeal allowed.
Key Points: - The scope of Order 14 Rule 2(2) of the CPC is wider than Order 7 Rule 11(a) of the CPC (!) . - The whole purpose of trial on a preliminary issue is to save time and money (!) . - Under Order 14 Rule 2(2), the court can look into the entire pleadings and materials available on record, to the extent not in dispute, to determine jurisdiction or a bar to the suit (!) (!) . - An enquiry under Order 7 Rule 11(a) is concerned with institutional defects and the court can only see whether the plaint or pleadings of the plaintiff constitute a cause of action (!) . - For an enquiry under Order 7 Rule 11(a), only the pleadings of the plaintiff-petitioner can be looked into, even if it is at the stage of trial of preliminary issues under Order 14 Rule 2(2) (!) . - The High Court committed a mistake by considering explanations offered in the replies filed by the respondents when dealing with an enquiry under Order 7 Rule 11(a) (!) . - The High Court erred by considering the correctness of allegations and evidence in support of averments at the stage of considering the maintainability of the election petition (!) . - The High Court exercised its jurisdiction only under Section 83(1)(a) of the Act read with Order 7 Rule 11(a) of the Code, and the scope of enquiry had to be limited to the pleadings of the plaintiff (!) . - The election petition disclosed a cause of action and it was not necessary to remit the petition for a fresh enquiry (!) . - The appeal was allowed, the impugned order was set aside, and the election petition was remitted to the High Court to try it on merits (!) .
JUDGMENT
KURIAN, J.:
1. Chapter III of Part VI of The Representation of the People Act, 1951 (hereinafter referred to as “the Act”) deals with trial of election petitions. Under Section 86(1) of the Act, “the High Court shall dismiss an election petition which does not comply with the provisions of Section 81 or Section 82 or Section 117”. Section 100 of the Act provides for grounds for declaring election to be void. Section 100(1)(d)(iii) of the Act provides that an election of a returned candidate can be declared to be void if the High Court is of the opinion that the result of the election, in so far as it concerns a returned candidate, has been materially affected by the improper reception, refusal or rejection of any vote or the reception of any vote which is void. Section 81 provides for institutional requirements including limitation and Section 117 provides for deposit of security for costs. Section 83, under Chapter II, deals with contents of an election petition. Under Section 83(1)(a) of the Act, “an election petition shall contain a concise statement of material facts on which the petitioner relies”. Under Order VII Rule 11(a) of the Code of Civil Procedure, 1908 (hereinafter referred to as “the Code”), a plaint shall be rejected where it does not disclose a cause of action and under Order XIV Rule 2(2), the court may deal with the preliminary issue on jurisdiction of the court and bar to the suit created by any law in force. These are the provisions relevant for consideration of the present case.
2. The appellant lost election from Bhattiyat Assembly Constituency of Himachal Pradesh Legislative Assembly held in 2012 by a margin of 111 votes. He filed an election petition mainly on the grounds under Section 100(1)(d)(iii) of the Act. Of the six issues settled, issues 2 to 5 were treated as preliminary issues, of which, issues 2 and 3 related to cause of action:
“2) Whether the election petition is liable to be dismissed in limine for lack of material facts and particulars, as alleged?
3) Whether the election petition is not maintainable for want of any cause of action, as alleged?”
3. Appellant is aggrieved since his petition has been dismissed, based on the findings on the preliminary issues that the election petition lacked in material facts as required under Section 83(1)(a) of the 1951 Act and as such, did not disclose any cause of action.
4. As far as the averments in the election petition are concerned, it is not necessary for us to refer to the same in extenso since they have been summarized in paragraph-27 of the impugned judgment, which reads as follows:
“27. The “violations” alleged by the petitioner during poling and counting of votes can be grouped in the following three categories, which shall be dealt with one by one:-
I. Exercise of dual right of franchise by a voter and discrepancy between the EVM record and the record maintained in Form 17-A at polling station No.92-Kamla;
II. Improper reception of 30 postal ballot papers; and
III. Discrepancy regarding 100 postal ballot papers-whether 597 or 697?”
5. The High Court dealt with the violations referred to above extensively so as to find out whether a cause of action is made out, but committed a grave error by considering the explanations offered in the replies filed by the respondents. All the three violations have been discussed meticulously by the High Court with reference to the replies furnished by the respondents and the court came to the conclusion that the petition did not disclose any cause of action since it lacked material facts. The High Court ventured into such an elaborate enquiry in the light of the pleadings in the replies, to see whether the result of the election has been materially affected, apparently or rather mistakenly, under Order XIV Rule 2.
6. Order XIV deals with settlement of issues and determination of suit on issues of law or on issues agreed upon.
Order XIV Rule 2 provides for disposal of a suit on a preliminary issue and
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