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1999(9) Supreme 265
SUPREME COURT OF INDIA
(From Himachal Pradesh High Court)
Dr. A.S. Anand, CJI., S. Rajendra Babu and R.C. Lahoti, JJ.
Mahendra Pal -Appellant
versus
Ram Dass Malanger & Ors. -Respondents
Civil Appeal No. 4085 of 1998
Decided on 27-10-1999
Counsel for the Parties :
For the Appellant : E.C. Agrawala, A.V. Palli, Rishi Agrawala, Mahesh Agrawala and Ms. Triveni Potekar, Advocates.
For the Respondents : Satya Pal Jain, Sr. Advocate, Naveen Kumar Singh, Randhir Jain, Advocates.
Pleadings have to be read as a whole to ascertain their true import. It is the substance and not merely the form, which is required to be looked into for construing the pleadings. The intention of the party needs to be gathered from the tenor and terms of his pleadings taken as a whole. (Para 24)
Section 83(1)(a) of the Act mandates that in order to constitute a cause of action, all material facts, that is, the basic and preliminary facts which the petitioner is bound under the law to substantiate in order to succeed, have to be pleaded in an election petition. Whether in an election petition, a particular fact is material or not and as such required to be pleaded is a question which depends upon the nature of the charge levelled and the facts and circumstances of each case. Facts which are essential to disclose a complete cause of action are material facts and are essentially required to be pleaded. On the other hand "particulars" are details of the case set up by the party and are such pleas which are necessary to amplify, refine or explain material facts. The function of particulars is, thus, to present a full picture of the cause of action to make the opposite party understand the case that has been set up against him and which he is required to meet. The distinction between material facts and material particulars is indeed important because different consequences follow from a deficency of such facts or particulars in the pleadings. Failure to plead even a single material fact leads to an incomplete cause of action and incomplete allegations of such a charge are liable to be struck off under Order 6, Rule 16, Code of Civil Procedure. In the case of a petition suffering from deficiency of material particulars the Court has the discretion to allow the petitioner to supply the required particulars even after the expiry of limitation. Thus, whereas it may be permissible for a party to furnish particulars even after the period of limitation for filing an election petition has expired, with permission of the Court, no material fact unless already pleaded, can be permitted to be introduced, after the expiry of the period of limitation. (Para 7)
In the instant case careful reading of paragraph 10 of the election petition shows that categorical averments had been made therein to the effect that while the total number of ballot papers polled from all the polling stations of the assembly constituency were shown as 35310, the votes actually counted from all those polling stations were shown as 35318. These averments were supported by reference to annexure P-2 and annexure P-3. It was no body s case in the pleadings that there was some "accidental slip or clerical or arithmetical mistake" committed either at the "time of counting" or while "preparing the statements in Form 16 and 20A." A difference of 8 votes had been projected in Annexure P-2 and Annexure P-3. The margin of difference between the votes polled by the election petitioner and the returned candidate, in the present case, was only 3 votes. Unless a satisfactory explanation was furnished during the trial about the discrepancy, there would be need to inspect the ballot papers to clarify doubts regarding the excess counting of 8 votes, allegedly in favour of the returned candidate. This was also necessary to dispel doubts about the allegations of irregularity in counting. The election petition did contain an adequate statement of material facts on which the allegations of irregularities or illegalities in counting were founded. The election petition therefore deserved to be tried on merits. (Paras 17, 19, 22 & 25)
(ii) Pleadings-Cause of action-Construction of pleadings have to be read as a whole to ascertain true import-Substance and not merely form, which is to be looked into. (Para 24)
JUDGMENT
Dr. A.S. Anand, CJI.-Aggrieved by the dismissal of an election petition challenging the election of Respondent No. 1, from 33-Kutlehar Assembly Constituency to the Himachal Pradesh Vidhan Sabha vide order dated 24th June, 1998, without trial, the Appellant has filed this appeal.
2. The Appellant had contested the election as a candidate sponsored by Indian National Congress while Respondent No. 1 had contested the election as a candidate sponsored by Bharatiya Janata Party. Whereas Respondent No. 1 polled 11,660 votes, the Appellant was shown to have polled 11,657 votes. As many as 750 votes had been declared invalid. The remaining votes had been polled in favour of other candidates.
3. The principal challenge to the election of Respondent No. 1 who was declared elected by a margin of 3 votes only was based on improper reception of invalid votes in favour of Respondent No. 1 and improper rejection of valid votes polled in favour of the Appellant. It was alleged that many irregularities were committed during the course of counting which had materially effected the result of the election insofar as the returned candidate is concerned. It was also pointed out that the total number of ballot papers which were shown to have been distributed was 35310, but, after counting, the number of ballot papers polled as per Form 20-A, was shown to be 35318. It was alleged that 8 votes which had been counted in excess had been illegally counted in favour of the returned candidate. An application filed by the Appellant, soon after the declaration of the result of election, for recount was rejected by the Returning Officer and the appellant has raised a grievance in that behalf also.
4. Respondent No. 1 resisted the election petition as well as the prayer for inspection and recount of ballot papers. Certain preliminary objections were raised in the written statement. Besides, Respondent No. 1 filed an application under Order 6 Rule 16 and Order 7 Rule 11 of the Code of Civil Procedure seeking rejection of the election petition on the ground that it lacked material facts and particulars and therefore did not furnish a cause of action. Respondent No. 1 also filed a recrimination petition under Section 97 of the Representation of the People Act, 1951 (hereinafter the Act). From the pleadings of the parties, the following preliminary issues were raised on 14.5.1998:
"1. Whether the election petition lacks in material facts and particulars and does not furnish a cause of action, as alleged, if so to what effect? OPR
2. Whether the election petition has not been properly verified, if so, to what effect? OPR
3. Whether true copy of the election petition has not been supplied to the respondents, if so to what effect? OPR
4. Relief."
5. During the course of hearing, learned counsel for Respondent No. 1 did not press issues 2 & 3 and consequently both those Issues were decided against Respondent No. 1. Finding on those issues has also not been challenged before us. Issue No. 1 was decided in favour of respondent No. 1. and it was held that :-
" In view of the foregoing discussion, it is held that the pleadings contained in the petition lack material particulars as required under Section 83 of the Act and that such pleadings do not furnish a cause of action. The issue is accordingly decided in favour of respondent No. 1 and against the petitioner."
(Emphasis supplied)
6. The findings on Issue No. 1 have been seriously debated before us. Learned counsel for the appellant has vehemently argued that in the established facts and circumstances of the case, the election petition could not be dismissed at the initial stage without trial. Learned counsel for the returned candidate, on the other hand, tried to persuade us to uphold the finding recorded by the learned Election Judge. It was asserted that because of a small margin only, the appellant was seeking a rec
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