1. Heard Sri P.S. Baghel, Senior Advocate and Sri N.K. Pandey, Advocate, for the respondent-applicant, Sri K.N. Tripathi and Sri K.R. Singh for election petitioner (hereinafter referred to as "the petitioner").
2. These are four applications filed by respondent-applicant whereby, in substance, he has prayed for striking out certain paragraphs of election petition, exercising power under Order 6 Rule 16 C.P.C. and to dismiss the election petition outright as not disclosing any cause of action and also contravening the provisions contained in Sections 81 and 83 of Representation of Peoples Act 1951 (hereinafter referred to as "the Act 1951").
3. The application No.340659 of 2010 (Paper No.A-17) has been filed under Order VI Rule 16 praying for striking out paragraphs No.8, 9, 11, 41, 42, 45, 46, 47, 48 and 49 of Election Petition being irrelevant, vague and vexatious.
4. Another application No. Nil of 2011 (Paper No.A-22) has also been filed under Order VI Rule 16 praying for striking out paragraphs No.30, 31, 32, 33, 34, 43, 44, 53 and 55 of Election Petition being irrelevant, vague and vexatious.
5. The third application No.340656 of 2010 (Paper No.A-16) is under Order VII Rule 11 (a) C.P.C. for rejection of election petition since it does not disclose any cause of action.
6. The fourth application no.125343 of 2011 (Paper No. A-23) is under Section 86(1) of Representation of People Act, 1951 (hereinafter referred to as "1951 Act") praying for dismissal of election petition as not maintainable for non compliance of the provisions of Sections 81 and 83 of 1951 Act. This application was filed in the Court itself and learned counsel for the petitioner sought to oppose this application on the basis of affidavits already filed and did not seek any time to file a separate reply. They made oral submissions to oppose this application relying on the affidavits filed in other applications.
7. The petitioner has preferred this election petition challenging election of Parliamentary seat for 68 Lalganj (SC) Parliamentary Constituency, District Azamgarh wherein the respondent is the returned candidate. In the year 2009 the Parliamentry elections were notified by the Election Commission of India (hereinafter referred to as "the Commission"). In respect of election of Parliamentary Seat for 68 Lalganj (SC) Parliamentary Constituency, District Azamgarh, the election programme notified by the Commission mentions the date of polling 16th April 2009 and date of counting of votes and declaration of result was 16th May 2009. The petitioner contested the election as candidate of Bhartiya Janta Party (BJP) with the symbol lotus while the respondent contested the election being a candidate of Bahujan Samaj Party (BSP) with the symbol of elephant. Since parliamentary constituency in question is reserved for scheduled castes, both the parties belong to the said category. The respondent received 2,07,998 votes while the petitioner bagged 1,68,050 votes. Consequently, the respondent was declared elected by a margin of 39,948 votes qua the petitioner. This election petition has been filed alleging non-compliance of the provisions of the Act 1951, Rules and orders framed thereunder and in particular violation of Section 100(1)(d)(iv) of Act 1951. The respondent applicant vide two applications paper no. A-17 and A-22 has prayed for striking of certain paragraphs which in totality are as under:
"8. That the election of respondent is void and is liable to be set aside on the following amongst the other:
GROUNDS A. Because the result of the Election of respondent has been materially affected by non-compliance of the provisions of the Act and the Rules and orders made therein as contained under Section 100(1)(d)(iv) of the Act.
B. Because the Election of respondent is void and is liable to be declared void and set aside.
9. That a concise statement of material facts and particulars with regard to the aforesaid grounds 'A' and 'B' are given herein below.
11. That the petitioner is a popular social worker and has always been made available to the persons of the constituency. Due to her soft spoken language and full time availability for the public cause, the petitioner become very popular amongst the people and it was all most sure that she will win the election of the Member of Parliament. The respondent being the candidate of the ruling party of the State was sure that he is not going to win the election unless some irregularities or illegalities are committed for the furtherance of his election.
30. That in the present matter, the Returning Officer did not follow any of the provisions, aforesaid, contained in the Handbook. Neither the petitioner was given any information to be present at the time of preparation of Electronic Voting Machine and randomization nor the list of Electronic Voting Machine deployment account was given to petitioner. According to petitioner's information it was not given to any of the candidates.
31. That the polling was held on 16-04-2009. Till the date of poll the said list was given to petitioner. It is much after the poll the said list was not given to petitioner. It is much after the poll when the petitioner applied for the copy of Electronic Voting machine deployment account then she was given the copies of the same upon application on 09.05.2009. The copies of Electronic Voting Machine deployment account captioned as "AC Wise List of Control Unit/ Ballot Unit" of all the 5 Assembly Segments, which was made available to the petitioner by the Returning Officer upon application on 09-05-2009 containing the number and name of polling stations and the machine number of Control Unit and Ballot Unit is annexed herewith and is marked as ANNEXURE-1 to this Election Petition.
32. That according to the aforesaid list the voting machines were allotted polling station wise. Whenever there was any change of machine to any polling station, the same was mentioned in the aforesaid list by indicating the number in handwriting. Since the said list was made available to the petitioner after the poll on 09.05.2009, therefore, the said list contained the voting machines number and also the changed numbers where ever the machine was changed due to any reason.
33. That the counting of votes was fixed to be done on 16.05.2009. After the polling, the Electronic Voting Machines of different Assembly Segments were kept in separate rooms in FCI Godown where counting of votes was to be done. In the night of 15.05.2009 at about 8.30 p.m. Two trucks loaded with big boxes came to the place of counting where the voting machines were kept in strong rooms. In FCI Godown, the Electronic Voting Machines of all the Assembly Constituencies of District Azamgarh were kept which included the 5 Assembly Constituencies of 68 Lalganj (SC) Parliamentary Constituency.
34. That when the aforesaid trucks loaded with big boxes reached at the place of counting, in the night hours, where the voting machines were kept, one of the candidate of Bhartiya Janta Party of another Parliamentary Constituency Sri Rama Kant Yadav reached the place and requested the Superintendent of Police to inspect the boxes but the Superintendent of Police did not permit to inspect to any of the boxes loaded at the truck. The entire incident was reported in the daily newspaper "Dainik Jagran and Hindustan" of 16.05.2009. The Photostat copies of relevant extract of news reports aforesaid is annexed herewith and is marked as ANNEXURE-2 to this election petition.
41. That during the counting of votes, the counting agents came through a situation where a different machine was brought for counting of votes than it was allotted to a particular polling station. The counting agents tried to raise oral objections regarding the said change of machines but the counting staff and the Returning Officer did not pay any heed to it and the counting agents were forced to sit on their chair quietly and not to raise any objection otherwise the police officers threatened that the counting agents shall be forced to leave the counting place.
42. That the petitioner's counting agents noted the fact that a large number of machines are being brought on counting tables which were not allotted to be used at the polling station. The counting agents tried to note down the machine numbers but as the same was different from the numbers actually allotted to the polling station, therefore, the counting staff tried to avoid to show the machine number. However, with a great difficulty the petitioner's counting agents could be able to note down the machine numbers of some of the machines. The particular and details of such 58 machines are contained in Schedule, containing the name of Assembly Segments, the polling station number, the Control Unit and Ballot Unit number which was allotted, the Control Unit and ballot Unit number which was allotted, the Control Unit number and Ballot Unit number which was brought for counting and the total number of votes contained in the said machine, is being filed as SCHEDULE-I to this election petition which forms the integral part of it.
43. That there were a large number of other machines whose numbers were different than the numbers allotted to be used at polling stations, but the counting staff did not permit the petitioner's counting agents to note down the numbers of such machines. The petitioner's counting agents could not be able to note down the machine numbers in spite of their best efforts. The police personnel present on spot, did not permit the counting agents to move from their chair and to raise any objection in this regard.
44. That in order to verify the machine numbers, the petitioner applied for certified copies of Form-17-C on 23.5.2009 and 25.05.2009 but the Returning Officer avoided to supply the certified copies and ultimately on 05.06.2009 he refused to supply the certified copies of Form-17-C. The petitioner again applied for certified copyies on 09.06.2009 mentioning therein the provisions of the Conduct of Elections Rules, 1961 and the provisions given in the Handbook for Returning Officers for providing the copies of such documents then only the Returning Officer with a great difficulty made available the certified copies of Form-17-C on 19.06.2009. The copy of letter dated 5-6-2009 issued by the Deputy District Election Officer, Azamgarh is being filed as ANNEXURE -4 to this petition. The copies of Form- 17-C part 1 of the polling stations mentioned in Schedule-1 are being annexed herewith and are marked as ANNEXURE -5 to this election petition.
45. That upon comparison of the list of Electronic Voting Machine allotted to polling stations whose details are contained in Annexure-1 and Schedule-1 with Form -17-C Part 1 of corresponding polling station, it is clear that the machine which was allotted to the polling station was not brought for counting of votes. It was some other machine by which the votes counted.
46. That in From-17-C Part1, a Column is provided to note down the Control Unit and ballot Unit used at the polling station. There are large numbers of Form-17-C Part 1 which does not contained the machine number of Control Unit and ballot Unit. The particular and details of such polling station and the total number of votes contained in those machines are being given in a list which is contained in SCHEDULE-II to this election petition which forms the integral part of it.
47. That Form-17-C Part 1 of the aforesaid polling stations does not contained the machine number at all. The copies of Form-17-C Part 1 of such polling stations are annexed herewith and are marked as ANNEXURE-6 to this election petition.
48. That the votes contained in the said machines are void votes and therefore could not be counted for any one. The total number of votes contained in all the aforesaid machines, detailed in Schedule-1 and II comes to 59323 votes whereas the difference of votes between petitioner and respondent is 39948 votes only.
49. That during the counting of votes, the Returning Officer directed the counting agents to put their signatures upon Form-17-C Part II in advance before the actual counting took place. The counting agents followed the instructions of the Returning Officer and put their signatures upon the forms aforesaid before the actual counting of votes. It was done by the Returning Officer in a designed manner to help the respondent and to declare him elected by any means.
53. That there are large scale manipulations in the Electronic Voting Machines, Form-17-C and the result of the election. The entire election was vitiated due to the reasons aforesaid.
55. That as due to change of Electronic Voting Machines, the entire election process vitiated, therefore, the result of election of the respondent is liable to be set aside and fresh election deserves to be held in order to maintain the fairness and purity of election."
8. Application A-23 seeks dismissal of election petition under Section 86(1) for non-compliance of Sections 81 and 83. The respondent has said that election petition makes reference of Chapter 12 of Handbook of Returning Officers at Elections for General Elections of Parliament 2008, but neither the said extract of handbook has been annexed alongwith the election petition nor copy thereof has been served upon the respondent applicant. This defect constitutes non-compliance of Section 81(3) of Act 1951. He has pleaded that the documents aforesaid constitute integral part of the election petition containing material facts and particulars of election and non-supply thereof amounts to lack of disclosure of cause of action justifying dismissal of election petition under Order VII Rule 11(a) C.P.C. as also under Section 86(1) of Act 1951. The application also contains certain factual and legal clarifications/explanations/ submissions with respect to certain paragraphs which the applicant-respondent has prayed for striking off under Order VI Rule 16 CPC. In order to stress its further prayer for rejection of election petition under Order VII Rule 11 CPC, though the fourth application, i.e. paper no. A-23 is titled as having been filed under Section 86(1) of Act, 1951 but, in substance, it is a composite application under Section 86(1) as well as Order VII Rule 11 CPC.
9. Be that as it may, since all the applications have been addressed by learned counsel for the parties raising common and similar arguments, I proceed to consider the same in the light of statutory provisions relevant in the matter.
10. To appreciate the scope of judicial review at this stage it would be appropriate to have a bird's eye view of the relevant provisions as also the precedential law thereon.
11. First I propose to deal with Section 86 of Act, 1951. It provides for dismissal of an election petition if it does not comply with the provisions of Section 81 or Section 82 or Section 117. It reads as under:
"86. Trial of election petition.- (1) The High Court shall dismiss an election petition which does not comply with the provisions of section 81 or section 82 or section 117."
12. Section 81 of 1951 Act, non compliance whereof would make it obligatory to the High Court to dismiss the election petition under Section 86, reads as under:
"Presentation of petition.-(1) An election petition calling in question any election may be presented on one or more of the grounds specified in sub-section (1) of section 100 and section 101 to the High Court by any candidate at such election or any elector within forty five days from, but not earlier than, the date of election of the returned candidate, or if there are more than one returned candidate at the election and the dates of their election are different, the later of those two dates.
Explanation- In this sub-section "elector" means a person who was entitled to vote at the election to which the election petition relate, whether he has voted at such election or not.
(2) [Sub-section (2) omitted by Act 47 of 1966, S. 39 (w.e.f. 14-12-1966)] (3) Every election petition shall be accompanied by as many copies thereof as there are respondents mentioned in the petition, and ever such copy shall be attested by the petitioner under his own signature to be a true copy of the petition"
13. Since there is no reference of non-compliance of Section 82 or 117 of Act 1951, I skip these two provisions for the purpose of present case. Section 81(1) of Act 1951 says that election petition can be filed within 45 days but not earlier than the date of election of returned candidate, if it challenges an election on one or more grounds specified in sub-section (1) of Section 100 and Section 101. It further provides that an election petition shall be accompanied by as many as copies thereof as there are respondents mentioned in the petition and every such copy shall be attested by the petitioner under his own signature to be a true copy of the petition. Requirement of attestation of copy of election petition supplied to the respondents is mandatory. (AIR 1980 SC 303 (Sharif-ud-din v. Abdul Gani Lone).
14. Since the issue of non-compliance of Section 81 has been clubbed and intermingled with the issues relating to Order VI Rule 16 and Order VII Rule 11 CPC, it would be appropriate to consider these provisions also before taking up the specific application on merits. However, it is worthwhile to mention that the two provisions aforesaid can be appreciated properly in the light of Section 101(d)(iv) of Act 1951 which is the foundation of this election petition, which reads as under:
100. Grounds for declaring election to be void (1) Subject to the provisions of sub-section (2) if the High Court is of opinion-
......................
(d) that the result of the election, in so far as it concerns a returned candidate, has been materially affected--
.....................
...................
......................
(iv) by any non-compliance with the provisions of the constitution or of this Act or of any rules or orders made under this Act, the High Court shall declare the election of the returned candidate to be void."
15. In order to attract the above provision pleadings must contain material facts demonstrating on compliance of the provisions of the Constitution or of the Act 1951 or any Rules or orders made under Act 1951.
16. Learned counsel for respondent-applicant vehemently contended that the pleadings in the paragraphs sought to be struck off are vexatious, vague and scandalous. Material facts showing non-compliance of relevant provisions are not disclosed and, therefore, not only the paragraphs in question be struck out but election petition itself deserves to be rejected for non-disclosure of material facts. He also contended that the relevant orders under Act 1951 non-compliance whereof is complained also constitute material facts and in case of non-filing of relevant part of the orders in the election petition would amount to violation of requirement of Section 81(1) and (3) of Act 1951, justifying dismissal of election petition under Section 86(1) of Act 1951.
17. Learned counsel appearing for petitioner per contra submitted that only facts have to be pleaded and not the law. The paragraphs in question disclose a systematic case of non-compliance of various provisions stated in the election petition and there is no violation at all of any provision, hence the applications which have been filed only to delay the proceedings, lack bona fide and should be rejected outright.
18. I have heard learned counsel for the parties at length and perused the record.
19. An election is the essence of democratic system and purity of election must be maintained to ensure fair election. Election petition is a statutory process to hold inquiry into purity of election. However, public interest requires that sword of Damocles should not remain hanging over the head of returned candidate for indefinite period. He should be free to discharge his public duties and functions relating to his constituency.
20. It is now well settled that right to contest election or to question the election by means of election petition is neither a common law nor fundamental right. Instead, it is statutory right regulated by statutory provisions namely, in the present case, 1951 Act. There is no fundamental or common law rights in these matters.
21. In N.P. Ponnuswami v. Returning Officer, Namakkal Constituency, AIR 1952 SC 64, the apex Court has said in paragraph 12 as under:
12. It is now well-recognized that where a right or liability is created by a statute which gives a special remedy for enforcing it, the remedy provided by that statute only must be availed of. This rule was stated with great clarity by Willes J. in Wolver Hampton New Water Works Co. v. Hawkesford [(1859) 6 C.B. (N.S.) 336, 356] in the following passage:
There are three classes of cases in which a liability may be established founded upon statute. One is, where there was a liability existing at common law and that liability is affirmed by a statute which gives a special and peculiar form of remedy different from the remedy which existed at common law; there, unless the statute contains words which expressly or by necessary implication exclude the common law remedy, the party suing has his election to pursue either that, or the statutory remedy. The second class of cases is, where the statute gives the right to sue merely, but provides no particular form of remedy; there, the party can only proceed by action at People's Union for Civil Liberties v. Union of India 7 common law. But there is a third class, viz., where a liability not existing at common law is created by a statute which at the same time gives a special and particular remedy for enforcing it. The remedy provided by the statute must be followed, and it is not competent to the party to pursue the course applicable to cases of the second class. The form given by the statute must be adopted and adhered to."
22. Similarly in Jagan Nath Vs. Jaswant Singh and others AIR 1954 SC 210 the Apex Court observed in para 7 as under:
"The general rule is well settled that the statutory requirements of election law must be strictly observed and that an election contest is not an action at law or a suit in equity but is a purely statutory proceeding unknown to the common law and that the court possesses no common law power. It is also well settled that it is a sound principle of natural justice that the success of a candidate who has won at an election should not be lightly interfered with and any petition seeking such interference must strictly conform to the requirements of the law. None of these propositions however have any application if the special law itself confers authority on a tribunal to proceed with a petition in accordance with certain procedure and when it does not state the consequences of non-compliance with certain procedural requirements laid down by it.
It is always to be borne in mind that though the election of a successful candidate is not to be lightly interfered with, one of the essentials of that law is also to safeguard the purity of the election process and also to see that people do not get elected by flagrant breaches of that law or by corrupt practices. In cases where the election law does not prescribe the consequence, or does not lay down penalty for non-compliance with certain procedural requirements of that law, the jurisdiction of the tribunal entrusted with the trial of the case is not affected." (emphasis added)
23. In Jyoti Basu v. Debi Ghosal, AIR 1982 SC 983, in para 8 the Apex Court held as under:
"8. A right to elect, fundamental though it is to democracy, is, anomalously enough, neither a fundamental right nor a common law right. It is pure and simple, a statutory right. So is the right to be elected. So is the right to dispute an election. Outside of statute, there is no right to elect, no right to be elected and no right to dispute an election. Statutory creations they are, and therefore, subject to statutory limitation. An election petition is not an action at common law, nor in equity. It is a statutory proceeding to which neither the common law nor the principles of equity apply but only those rules which the statute makes and applies. It is a special jurisdiction, and a special jurisdiction has always to be exercised in accordance with the statutory creating it. Concepts familiar to common law and equity must remain strangers to Election Law unless statutorily embodied. A court has no right to resort to them on considerations of alleged policy because policy in such matters as those, relating to the trial of election disputes, is what the statute lays down. In the trial of election disputes, court is put in a straight-jacket................" (emphasis added)
24. This has been followed consistently and referred to in recent decisions in Dr. Krishna Murthy and others Vs. Union of India and another, JT 2010 (5) SC 601 = 2010(5) SCALE 448 = (2010) 7 SCC 202 and Kalyan Singh Chouhan Vs. C.P. Joshi 2011(1) SCALE 718.
25. In Dhartipakar Madan Lal Agarwal Versus Rajiv Gandhi AIR 1987 SC 1577 = JT 1987 (2) 402=1987 SCALE (1)1086 the Court while reiterating the above proposition said that 1951 Act is a complete and self contained code within which any rights claimed in relation to an election or an election dispute must be found. The scheme of the Act shows that an election can be questioned under the statute as provided by Section 80 on the grounds as contained in Section 100 of the Act. Section 83 lays down a mandatory provision that an election petition shall contain a concise statement of material facts and set forth full particulars of corrupt practice. The pleadings are regulated by Section 83 and makes it obligatory on the election petitioner to give the requisite facts, details and particulars of each corrupt practice with exactitude. If the election petition fails to make out a ground, it must fail at the threshold. The Code of Civil Procedure as such in its entirety may not be applicable but applies to the extent permitted by Section 87 of the Act. The purpose is that in the garb of election petition one should not be allowed to put in motion a judicial institution so as to make a fishing and roving inquiry. The allegations of corrupt practice are in the nature of a criminal charge. It is incumbent and of utmost importance that the allegations should not be vague and general so as to make it difficult to the returned candidate to know the case he has to meet.
26. It is in this context that in Dhartipakar Madan Lal Agarwal (Supra) the Court said that if an election petition does not disclose cause of action, i.e., the pleadings in various paragraphs are so vague and general and lack material facts and particulars so as to disclose the cause of action under 1951 Act, such paragraphs of the petition are liable to be struck off under Order 6 Rule 16 C.P.C. at any stage of the proceedings. It is the duty of the Court to examine the plaint and it need not wait till the defendant files written statement and points out the defects. If the court is satisfied that the election petition does not make out any cause of action and the trial would prejudice, embarrass and delay the proceedings, the court need not wait for the filing of the written statement but can proceed. If after striking out the pleadings it finds that no triable issues remain to be considered, it has power to reject the election petition under Order VII Rule 11 CPC.
27. In K. Kamaraja Nadar v. Kunju Thevar and Ors., [1959] SCR 583, Court said that the preliminary objections regarding lack of cause of action, non-disclosure of material facts and particulars etc. ought to be considered at the earliest by the Election Tribunal so as to avoid heavy expenses, loss of time and diversion of the returned candidate from his public duty in the various fields of activity including those in the House of the People.
28. Same is the view reiterated in Udhav Singh v. Madhav Rao Scindia, [1976] 2 SCR 246 and Charan Lal Sahu & Ors., v. Giani Zail Singh & Anr., [1984] 2 SCR 6.
29. Now in order to consider the applications paper No. A-17, A-22, A-16 and A-23. It would be worthy to peruse Order VI Rule 16 CPC which has been relied for seeking the prayer for striking out paragraphs no. 8, 9, 11, 30, 31, 32, 33, 34, 41, 42, 43, 44, 45, 46, 47, 48, 49, 53 and 55:
"16. Striking out pleading.- The Court may at any stage of the proceedings order to be struck out or amended any matter in any pleading,-
(a) which may be unnecessary, scandalous, frivolous or vexatious, or
(b) which may tend to prejudice, embarrass or delay the fair trial of the suit, or
(c) which is otherwise an abuse of the process of the Court."
30. This rule empowers the Court to strike out the pleadings whenever certain contingencies contemplated therein exist. A perusal of entire provision makes it clear that it may not be necessary to dismiss a plaint in its entirety, even if certain parts of the pleadings are ordered to be struck out or amended, inasmuch as, despite such order, cause of action may survive and therefore, proceedings may continue. The result of an order under Order VI Rule 16 necessarily may not be in rejection or cession of the proceedings.
31. To attract order VI Rule 16, the Court must come to a conclusion that the pleadings must be:
(i)unnecessary
(ii)scandalous
(iii)frivolous
(iv)vexatious
32. The other conditions are if the pleadings are such as may tend to prejudice the fair trial of the suit, embarrass the fair trial of the suit or delay the fair trial of the suit.
33. The last condition is that the pleadings otherwise constitute an abuse of the process of the Court.
34. In P Ramanatha Aiyar's Law Lexicon, The Encyclopaedic Law Dictionary (2nd Edition Reprint 2007) published by Wadhwa and Company Nagpur, the word 'unnecessary' means:
"Unnecessary. Not required under certain circumstances. Not necessary."
35. In Henry Campbell Black's Law Dictionary, Fifth Edition by St. Paul Minn. West Publishing Co. 1979 it defines:
"Unnecessary. Not required by the circumstances of the case."
36. The pleadings, which is necessary to establish the case of the party concerned should only be allowed and not which has nothing to do with the case set up by the parties concerned. In order to find out whether pleadings is necessary or not, the entire document of the pleading has to be read and not a sentence or a word in isolation. To determine the relevancy, one must consider the nature of the suit and whether any relief is sought in respect of the allegations made in the defence. In deciding the question whether the allegations, which are objected to, are relevant on any of the issues, the correct test is whether the controversial allegations should be spoken to by the defendants in their evidence for the purpose of establishing his defence, which if established, would non-suit the plaintiff, and that with reference to that matter, it would be inadmissible in evidence with reference to the relief that prayed.
37. The pleadings, which are scandalous are more serious and have to be struck out before it may cause any damage to someone. The Court has a duty to discharge towards the public and the suitors, in taking care that its records are kept free from irrelevant and scandalous matter. Scandal is calculated to do great and permanent injury to all persons, whom it affects, by making the records of the court the means of perpetuating libelous and malignant slanders. The court, in aid of the public morals, is bound to interfere to suppress such indecencies, which may stain the reputation and would the feelings of the parties and their relatives and friends. However, one must always remember that nothing can be scandalous which is relevant. If the facts pleaded are relevant and necessary, no objection on the count of being scandalous can be accepted.
38. In P Ramanatha Aiyar's Law Lexicon, The Encyclopaedic Law Dictionary (2nd Edition Reprint 2007) published by Wadhwa and Company Nagpur, the word 'scandalous' means:
"Scandalous. A pleading is said to be "Scandalous', if it alleges anything unbecoming the dignity of the Court to hear, or is contrary to good manners, or which charges a crime immaterial to the issue. But the statement of a scandalous fact that is material to the issue is not a scandalous pleading. (Millington v. Loring, 50 LJ QB 214 ; 6 QBD 190).
Of the nature of a scandal, containing defamatory information [S. 151, Indian Evidence Act].
Facts not material to the decision are impertinent, and, if reproachful, are scandalous.
The term "scandalous", as applied to the pleading of scandalous matter, cannot be applied to any matter which is not also impertinent and unnecessary."
39. In Concise Oxford English Dictionary 11th Edition (Revised) 2008 the words 'frivolous' and 'vexatious' have been defined as under:
"frivolous: adj. not having any serious purpose or value. (of a person) carefree and superficial."
"Vexatious. Adj. 1. Causing annoyance or worry. 2. Law (of an action) brought without sufficient grounds for winning, purely to cause annoyance to the defendant. "
40. In the Law Lexicon (The Encyclopaedia Law Dictionary) by P. Ramanatha Aiyar IInd Edition 1997 the words 'frivolous' and 'vexatious' have been defined as under:
"Frivolous. Of little weight or importance. A pleading is "frivolous" when it is clearly insufficient on its face, and does not controvert the material points of the opposite pleading, and is presumably interposed for mere purposes of delay or to embarrass the opponent. A claim or defense is frivolous if a proponent can present no rational argument based upon the evidence or law in support of that claim or defense. Liebowitz v. Aimexco incident. Colo, App. 701 p. 2d 140, 142. Frivolous pleadings may be amended to proper form, or ordered stricken, under federal and state Rules of Civil Procedure.
Of little or no weight or importance; not with serious attentions; manifestly futile"
"Vexatious. Includes false. 1904 AWN 116=1 ALJ 450=25 All 512) An accusation cannot be said to be vexatious unless the main intention of the complainant was to cause annoyance to the person accused, and not merely to further the ends of justice. (11 SLR 55 Appr. ; 94IC, 271=27 Cr LJ 607=AIR 1926 lah. 365.) ."
41. In Black's Law Dictionary, Fifth Edition 1979, the words 'frivolous' and 'vexatious' have been defined as under:
"Frivolous. Of little weight or importance. A pleading is "frivolous" when it is clearly insufficient on its face, and does not controvert the material points of the opposite pleading, and is presumably interposed for mere purposes of delay or to embarrass the opponent. Frivolous pleading may be amended to proper form, or ordered stricken under federal and state Rules of Civil Procedure."
"Vexatious. Without reasonable or probable cause or excuse. Gardener v. Queen Ins. Co. of America 232 Mo. App. 1101, 115 S.W.2d 4, 7."
42. In The New Lexicon Webster's Dictionary (Deluxe Encyclopedic Edition), the words 'frivolous' and 'vexatious' have been defined as under:
"Frivolous. Adj. gay and lighthearted in pursuit of trivial or futile pleasures; lacking in proper seriousness; empty, without importance."
"Vexatious. Adj. Causing vexation; (law, of actions) instituted without real grounds and meant to cause trouble or annoyance."
43. Now come to the next category i.e. tend to prejudice, embarrass or delay the fair trial of the suit. An allegation, which does not offer any defence to an action and which, if not struck out, would unnecessarily delay the suit, must be struck out. An allegation made to embarrass the defendant having no co-relation with the relief sought in the suit, cannot be permitted. A pleading is embarrassing if it is so drawn that it is not clear what case the opposite party has to meet at the trial.
44. The last comes the abuse of the process. Whenever the process of the Court appears to be abused, the Court can direct for striking out the pleadings at any stage.
45. This Court has to consider this application in the light of specific statutory provision as to whether pleadings in the above-mentioned paragraphs satisfy any of the conditions or part thereof so as to justify striking out all or any of the paragraphs referred to above.
46. Generally, what is to be pleaded, how it is to be pleaded is all within the domain of party who has drafted and filed petition. Of course when something is specially required to be mentioned therein by the statute, the same has to be complied. Normally, the Court would not direct or dictate the party what should be their pleadings and how should they prepare their pleadings. If there is no violation of statutory provision in making the pleadings, the parties have freedom to make appropriate averments and raise arguable issues. The authority of the Court to strike of the pleadings is therefore circumscribed with the conditions that it would be justified only when it is satisfied that the pleadings are unnecessary, scandalous, frivolous or vexatious or tend to prejudice, embarrass or delay the fair trial of suit or the suit is an abuse of the process of the Court.
47. The striking off pleading bear serious adverse impact on the rights of the concerned party. The power, therefore, to do so ought to be exercised with care and caution and oft quoted passage of Boven, L.J. in Knowles Vs. Roberts (1888) 38 Ch.D 263 referred to in various authorities of the Apex Court would be useful to refer hereat:
"It seems to me that the rule that the Court is not to dictate to parties how they should frame their case, is one that ought always to be preserved sacred. But that rule is, of course, subject to this modification and limitation, that the parties must not offend against the rules of pleading which have been laid down by the law; and if a party introduces a pleading which is unnecessary, and it tends to prejudice, embarrass and delay the trial of the action, it then becomes a pleading which is beyond his right. It is a recognized principle that a defendant may claim ex debito justitiae to have the plaintiff's claim presented in an intelligible form, so that he may not be embarrassed in meeting it; and the Court ought to be strict even to severity in taking care to prevent pleadings from degenerating into the old oppressive pleadings of the Court of Chancery."
48. In Sathi Vijay Kumar Vs. Tota Singh and others (2006) 13 SCC 353, the Apex Court in para 31 of the judgment said:
"Since the general principles as to pleadings in civil suits apply to election petitions as well, the pleadings which are required to be struck off under Rule 16 of order 6 in a suit can also be ordered to be struck off in an election petition. In appropriate causes, therefore, an election Tribunal (High Court) may invoke the power under Order 6 Rule 16 of the Code."
49. In Para 34 of the judgment in Sathi Vijay Kumar (Supra) the Apex Court quoted with approval the passage referred above in Knowles Vs. Roberts (supra).
50. In Abdul Razak (D) Through L.Rs and others Vs. Mangesh Rajaram Wagle and others JT 2010(1)SC 508 after referring to Boven, L.J.'s observation in Knowles Vs. Roberts (supra) the Court said that power to strike down pleadings is extraordinary in nature. It must be exercised sparingly and with extreme care, caution and circumspection. The above observations were made following earlier decisions in Roop Lal Sathi Vs. Nachhattar Singh Gill 1982(3)SCC 487; K.K. Modi Vs. K.N. Modi JT 1998(1)SC 407=(1998) 3 SCC 573 and Union Bank of India Vs. Naresh Kumar (1996) 6 SCC 660.
51. Thus the whole purpose of conferment of power under Order VI Rule 16 CPC to strike off the pleadings is either to dismiss the election petition in limine or striking out of unnecessary scandalous, frivolous or vexatious. This is to ensure that a litigation which is meaningless and bound to prove abortive should not be permitted to occupy the time of the court and does not embarrass the returned candidate. The sword of Damocle need not be kept hanging over his head unnecessarily without point or purpose. The Court also observed that hanging sword of election petition on the returned candidate would not keep him sufficiently free to devote his whole-hearted attention to matters of public importance which clamour for his attention in his capacity as an elected representative of the concerned constituency. The precious time and attention demanded by his elected office would be diverted to matters pertaining to the contest of the election petition. Instead of being engaged in a campaign to relieve the distress of the people in general and of the residents of his constituency who voted him into office in particular, and instead of resolving their problems, he would be engaged in devoting himself in the litigation pending against him. The fact that an election petition calling into question his election is pending may, in a given case, act as a psychological fetter and may not permit him to act with full freedom.
52. Obligation on a petitioner filing election petition is to give concise statement of material facts on which he relies. This is mandatory and violation thereof would be fatal. This provision has been considered in a catena of decisions and general consensus therein is that while an election petition must necessarily contain a statement of material facts, deficiency, if any, in providing particulars of corrupt practice could be made up by the petitioner at any later stage. It has been held that where a petition does not disclose material fact it can be dismissed as one that does not disclose a cause of action but where it does disclose a cause of action, dismissal on the ground of deficiency or non disclosure of particulars of corrupt practice may be justified only if an election petitioner does not despite opportunity given by the Court supply particulars and thereby cure the defects.
53. The word "material facts" was considered in Samant N. Balkrishna and another Vs. George Fernandez and others 1969(3) SCC 238 wherein the Court held that Section 83 is mandatory. The election petition requires first a concise statement of material facts and the fullest possible particulars of corrupt practices, if any alleged. The use of word 'material' shows that the facts necessary to formulate a complete cause of action must be stated. Omission of a single material fact could consequently lead to incomplete cause of action. The function of 'particulars' is to present a full picture of the cause of action with such further information in detail as to make the opposite party understand the case he is called upon to meet. There may be some overlapping between material facts and particulars but the two are quite distinct. Thus the material facts will show the ground of corrupt practice and the complete cause of action and the particulars will give the necessary information to present a full picture of the same.
54. In Raj Narain vs. Indira Nehru Gandhi (1972) 3 SCC 850 it was observed that if a pleading on a reasonable construction could sustain the action, the court should accept that construction and be slow in dismissing election petition lest it frustrates the cause of action only on technical grounds. The Court further observed:
"While a corrupt practice has got to be strictly proved but from that it does not follow that a pleading in an election preceding should receive a strict construction. This Court has held that even a defective charge does not vitiate a criminal trial unless it is proved that the same has prejudiced the accused. If a pleading on a reasonable construction could sustain the action, the court should accept that construction. The courts are reluctant to frustrate an action on technical grounds."
55. In Harkirat Singh v. Amrinder Singh (2005) 13 SCC 511 the Apex Court held, while 'material facts' and 'primary or basic facts' which must be pleaded by the plaintiff, 'particulars' or details in support of such "material facts" pleaded by the party. They simply 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 so that the opposite party is not taken by surprise.
56. In Virendra Nath Gautam Vs. Satpal Singh 2007(3) SCC 617 the Court said:
"50. 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." (emphasis added)
57. The expression "material facts" though has not been defined in the Act or in the Code of Civil Procedure but it has been understood by the Courts in general term to mean the entire bundle of facts which would constitute a complete cause of action. In Ram Sukh Vs. Dinesh Aggarwal (2009) 10 SCC 541=AIR 2010 SC 1227 the Court observed that material facts are facts upon which the plaintiff's cause of action or the defendant's defence depends. Broadly speaking primary or basic facts which are necessary either to prove cause of action by the plaintiff or defence by the defendants are the material facts. Material facts are facts which if established would give the petitioner relief prayed for but again what could be said to the material facts would be dependant upon the facts of each case and no rule of universal application can be laid down.
58. In Samant N. Balkrishna (Supra) the Court also observed that while stating material facts it will not be sufficient merely to quote the words of Section since efficacy of material fact in that event would be lost. This has been reiterated by a three Judge Bench in Mahadeorao Sukaji Shivankar vs. Ramratan Bapu and others (2004) 7 SCC 181 and Govind Singh vs. Harchand Kaur 2010 (12) SCALE 287.
59. Then comes the scope of Order VII Rule 11 C.P.C. It reads as under:
11. Rejection of plaint.- The plaint shall be rejected in the following cases:-
a) where it does not disclose a cause of action:
b) where the relief claimed is undervalued, and the plaintiff, on being required by the Court to correct the valuation within a time to be fixed by the Court, fails to do so:
c) where the relief claimed is properly valued but the plaint is written upon paper insufficiently stamped, and the plaintiff, on being required by the Court to supply the requisite stamp-paper within a time to be fixed by the Court, fails to do so:
d) where the suit appears from the statement in the plaint to be barred by any law.
e) where it is not filed in duplicate;
f) where the plaintiff fails to comply with the provisions of Rule 9 :
Provided that the time fixed by the Court for the correction of the valuation or supplying of the requisite stamp-papers shall not be extended unless the Court, for reasons to be recorded, is satisfied that the plaintiff was prevented by any cause of an exceptional nature from correcting the valuation or supplying the requisite stamp-papers, as the case may be, within the time fixed by the Court and that refusal to extend such time would cause grave injustice to the plaintiff."
60. The objection raised before this Court is with reference to Clause (a) of Rule 11, Order VII C.P.C. that the petition does not disclose a cause of action. One has to make out a distinction between the phrase that there was no cause of action for the suit and that the plaint does not disclose a cause of action. It is a later category in which plaint can be rejected under Order VII Rule 11 and not the former one. For the purpose of determining whether the plaint is wiped out under Order VII Rule 11(a) or not, the averments in the plaint are only to be looked into. One has to find out whether a clear right to sue has been shown in the plaint and not an illusory cause of action sought to be created with the help of intelligent drafting. What a cause of action would mean here we may consider in the list of authorities since it has not been defined as such. Generally speaking, as recognized in various authorities, a cause of action is a bundle of facts which taken with the law applicable, gives a plaintiff a right to relief against the defendants. (See: Dhanajishaw Vs. Fforde (1887) ILR 11 Bom 649; Musa Vs. Manilal (1905) ILR 29 Bom 368; Raghoonath Vs. Gobindnarain (1895) ILR 22 Cal. 451)
61. 'A cause of action' means a situation or a state of facts that entitle a party to maintain a action in a court or a tribunal; a group of operative facts giving rise to one or more basis for suing; a factual situation that entitles one person to obtain a remedy in court from another person. It means every fact, which, if traversed, it would be necessary for the plaintiff to prove in order to support his right to a judgment of the court.
62. Order VII Rule 11 (a) C.P.C. operates on its own and is not dependent either on an application under Order VI Rule 16 or otherwise. If the application does not discloses a cause of action, the Court has to reject the plaint. It is mandatory.
63. The compliance of Section 81(3) needs be in words and spirit and substantial. It has been considered as to when the annexure to the petition, if not served upon the respondents, would amount to non-compliance of Section 81(3) in AIR 1968 SC 1079 (Sahodrabai Rai Vs. Ram Singh Aharwar) and AIR 1984 SC 871 (A. Madan Mohan Vs. Kalavakunta Chandrasekhara) but I intend to refer it in detail a bit later.
64. Learned counsel for the respondent-applicant relied on Section 83 of 1951 Act also contending that the material facts having not been stated, it amounts to non disclosure of a cause of action and therefore the application is liable to be dismissed under Order VII Rule 11 C.P.C. Section 83 of 1951 Act reads as under:
"Contents of petition.- (1) An election petition-
(a) shall contain a concise statement of the material facts on which the petitioner relies;
(b) shall set forth full particulars of any corrupt practice that the petitioner alleges, including as full a statement as possible of the names of the parties alleged to have committed such corrupt practice and the date and place of the commission of each such practice; and
(c)shall the signed to the petitioner and verified in the manner laid down in the Code of Civil Procedure, 1908, for the verification of pleadings :
Provided that where the petitioner alleges any corrupt practice, the petition shall also be accompanied by an affidavit in the prescribed form in support of the allegation of such corrupt practice and the particulars, thereof.
(2) Any schedule or annexure to the petition shall also be signed by the petitioner and verified in the same manner as the petition."
65. A lot of arguments have been advanced as to what would constitute by the term "material facts". In Hardwari Lal Vs. Kanwal Singh AIR 1972 SC 515 the Court said that material facts are facts, which if established, would give the petitioner the relief asked for.
66. In N.Balakrishna Vs. George Fernandez & Ors AIR 1969 SC 1201 Hidayatullah C.J. Speaking for the Court said that material facts will mention statements of facts. It will show the ground of corrupt practice and the complete cause of action. It made a distinction between the material facts and the particulars.
67. Then in Manubhai Nandlal Amorsey Vs. Popatlal Manilal Joshi and Ors. 1969 SC 734 wherein the Court held that with respect to a challenge made on the ground of corrupt practices, the matter of assistance, the mode of assistance, the manner of assistance, the measure of assistance are all various aspects of fact to throw the petition with a cause of action which will call for an answer. Material facts are facts which if established would give the petition the relief asked for. It was argued therein that Section 83 having been not mentioned in Section 86, violation thereof would not result in dismissal of the election petition but the Apex Court rejected it saying that non mention of material fact would result in non disclosure of a cause of action entitling the Court to dismiss the suit. A suit, which does not furnish cause of action, can be dismissed.
68. In Mahadeorao Sukaji Shivankar Vs. Ramaratan Bapu and Ors. 2004 (7) SCC 181, the Court said in paras 6 and 7:
6. Now, it is no doubt true that all material facts have to be set out in an election petition. If material facts are not stated in a plaint or a petition, the same is liable to be dismissed on that ground alone as the case would be covered by Clause (a) of Rule 11 of Order VII of the Code. The question, however, is as to whether the petitioner had set out material facts in the election petition. The expression "material facts" has neither been defined in the Act nor in the Code. It may be stated that the material facts are 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 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 existence of cause of action or defence are material facts and must be stated in the pleading of the party.
7. But, it is equally well settled that there is distinction between "material facts" and "particulars". Material facts are primary or basic facts which must be pleaded by the party 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 finishing touch to the basic contours of a picture already drawn so as to make it full, more clear and more informative. Particulars ensure conduct of fair trial and would not take the opposite party by surprise."
69. In Virender Nath Gautam v. Satpal Singh and Ors. 2007(3) SCC 617, in para 31, 34, 39 and 40 the Court has said:
"31. 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.
"34. 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."
"39. The High Court, dealing with the allegation in para 8(i) has observed that there was nothing to show and not a word as to how many of those 37 votes were cast in favour of the returned candidate and who cast those votes. It was also observed that the defeated candidate never raised any objection at the time of polling and at the stage of filing Election Petition, it was not open to raise an objection. It was further observed that it was not the case of the election-petitioner that he was not aware of death of those persons at the time of polling and it was a case of impersonation of electors within the meaning of Section 61 of the Act. There was also not a whisper, observed the High Court that the polling agent had challenged the identity of the persons who allegedly voted for the dead electors. The High Court also stated that it was not stated in the Election Petition that the returned candidate or his supporters or election agent managed to have votes cast by impersonation. All these facts, according to the High Court, were material facts and since they were not stated in the Election Petition, the petition was defective."
"40. 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."
70. The above view has been followed and reiterated in Ram Sukh v. Dinesh Aggarwal 2009(10) SCC 541. In Ram Sukh (supra) the Apex Court has also observed that the object of Order VI Rule 16 and order VII Rule 11 C.P.C. is to ensure that meaningless litigation, which is otherwise bound to prove abortive, should not be permitted to occupy the judicial time of the courts. This is the approach in ordinary civil litigation and must apply with greater vigour in election matter where pendency of an election petition is likely to inhibit the elected representative of the people in the discharge on his public duties for which the Electorate have reposed confidence in him.
71. In Shri Udhav Singh v. Madhav Rao Scindia 1977(1) SCC 511 the Court observed that the omission will lead in complete cause of action and an election petition without the material fact is not a election petition at all.
72. In Azhar Hussain Vs. Rajiv Gandhi 1986 Supp (1) SCC 315 the Court held that all the facts which are essential to clothe the petition with complete cause of action must be completed and failure to plead even a single material fact would amount to disobedience of the mandate of Section 83(1)(a) of the Act and an election petition can be and must be dismissed if it suffers from any such vice.
73. Reading the aforesaid provisions together, in Dhartipakar Madan Lal Agarwal Vs. Rajeev Gandhi (1987) 3 SCR 369 the Court said:
"On a combined reading of Sections 81, 83, 86 and 87 of the Act, it is apparent that those paragraphs of a petition which do not disclose any cause of action are liable to be struck off under Order VI Rule 16, as the Court is empowered at any stage of the proceedings to strike out or delete pleading which is unnecessary, scandalous, frivolous or vexatious or which may tend to prejudice, embarrass or delay the fair trial of the petition or suit. It is the duty of the Court to examine the plaint and it need not wait till the defendant files written statement and points out the defects. If the court on examination of the plaint or the election petition finds that it does not disclose any cause of action it would be justified in striking out the pleadings. ....................... If the Court is satisfied that the election petition does not make out any cause of action and that the trial would preju- dice, embarrass and delay the proceedings, the court need not wait for the filing of the written statement instead it can proceed to hear the preliminary objections and strike out the pleadings. If after striking out the pleadings the court finds that no triable issues remain to be considered, it has power to reject the election petition under Order VII Rule 11.
74. This is followed in Pothula Rama Rao Vs. Pendyala Venakata Krishna Rao and others JT 2007(10) SC 147. In Azhar Hussain Vs. Rajiv Gandhi (1986)2 SCR 782 it was said that the whole purpose of conferment of power under Order VI Rule 16 CPC to strike off the pleadings is either to dismiss the election petition in limine or striking out of unnecessary scandalous, frivolous or vexatious. This is to ensure that a litigation which is meaningless and bound to prove abortive should not be permitted to occupy the time of the court and does not embarrass the returned candidate. The sword of Damocle need not be kept hanging over his head unnecessarily without point or purpose. The Court also observed that hanging sword of election petition on the returned candidate would not keep him sufficiently free to devote his whole-hearted attention to matters of public importance which clamour for his attention in his capacity as an elected representative of the concerned constituency. The precious time and attention demanded by his elected office would be diverted to matters pertaining to the contest of the election petition. Instead of being engaged in a campaign to relieve the distress of the people in general and of the residents of his constituency who voted him into office in particular, and instead of resolving their problems, he would be engaged in devoting himself in the litigation pending against him. The fact that an election petition calling into question his election is pending may, in a given case, act as a psychological fetter and may not permit him to act with full freedom.
75. In Harkirat Singh v. Amrinder Singh (2005) 13 SCC 511 the Apex Court held that while 'material facts' and 'primary or basic facts which must be pleaded by the plaintiff 'particulars' or details in support of such material facts pleaded by the party they simply 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 so that the opposite party is not taken by surprise.
76. In the light of the above discussion, I proceed to consider the above applications.
77. The petitioner has basically challenged the election of returned candidate on the ground that certain electronic voting machines (hereinafter referred to as "EVM") which were specified by the Returning Officer to be used for casting votes and controlling panel numbers disclosed to the candidates were later on changed surreptitiously when counting took place and there were at least 74 and more such EVMs, controlling panel whereof does not tally with the EVMs which were specified to be used in different polling stations. These machines got changed at the time of counting and thereby the provisions of the Rules and orders issued under the Act 1951 have been violated. The averments contained in paragraphs no. 16 to 51 narrate the relevant provisions as also the procedure and details of EVMs used for the purpose of polling. If we read the averments contained in the election petition harmoniously along with its annexures, it cannot be said that no cause of action has been disclosed therein. It also cannot be said that these averments in any manner are vague and vexatious or scandalous. The term 'scandalous' is not to be considered in isolation. If relevant material and pleadings are there and even they are to show that conduct of an election is vitiated in law, if someone has not felt ashamed in committing such irregularity, it cannot later on be pleaded that complaint of such illegality is scandalous. The truth if it is so, may be scandalous but it would not come within the mischief of Order VI Rule 16 CPC. For the purpose of attracting Order VI Rule 16 CPC or Order VII Rule 11 C.P.C. the Court cannot look into the defence or explanation, if any, available to the other side. At this stage, whatever has been said in the plaint/election petition has to be seen as a whole and not by reading one sentence here and there. If a collective and harmonious reading shows violation of any statutory provision in conduct of an election, the Court shall not exercise its power under Order VI Rule 16 CPC taking the averments contained in various paragraphs individually and separately. Para 8 of election petition alleges, in brief, violation of statute founded whereon the challenge of election petition in present case is. By itself nothing can be objected thereto. Para 9 is general. Paras 11 and 12 in isolation may be said a little vague and unspecific but reading the same alongwith other paragraphs of election petition, the purpose of aforesaid two paragraphs becomes clear. They only lay down the background in support of the specific allegations contained in subsequent paragraphs. Para 31 refers to list of EVMs with reference to identification number of voting control unit, i.e. EVMs control panel number with center number and name. Para 32 explains Annexure-1 to the writ petition. Paras 33 and 34 refer to the facts whereby the election petitioner has tried to support its further contention of irregularity in election crystallised in paragraphs no. 45, 46, 47, 49, 51, 53 and 55 of election petition. Whether the change actually took place or not; whether it was validly done and if any change was made and whether votes were counted from EVM in a valid manner are all matters to be seen in the light of defence and evidence available but at this stage, prima facie looking to the list of EVMs, identification numbers specified by Returning Officer and those which are taken at the time of counting it is difficult to subscribe to the view that no cause of action has been disclosed. I am trying to be brief on this aspect at this stage for the reason that any further discussion or observation referring to various annexures in election petition may prejudice the case of parties and, therefore, find it sufficient to observe that neither the paragraphs for which the applicant has requested for striking off, can be allowed to do so nor the application would be rejected on the ground of lack of cause of action under Order VII Rule 11 CPC. However, before coming to non filing of necessary documents, with respect to Order VII Rule 11 one more aspect may be considered regarding non filing of extract of Chapter 12 of Handbook of Returning Officer and as to whether it would attract Section 81(1) and (3) of Act 1951. The election petition can be filed on the ground that election has been held in violation of provisions of the Act, Rules and Orders issued thereunder. All these constitute law, violation whereof may vitiate the election. The statute requires pleading of material facts and not law. The statutory provisions, in my view, need not be made part of election petition itself and it is sufficient to make out reference to the provisions violation whereof is alleged by election petitioner in the pleadings. This certainty is writ large from the fact that the respondent himself has stated that the alleged violation refers to violation of provisions of the orders contained in Chapter 12 of Handbook of Returning Officers. It means that the pleadings are so clear and specific that the respondent would easily understand the provisions of which violation has been alleged.
78. Learned counsel for the applicant has referred to Rule 55C and has contended that neither the names of counting agents nor names of counting staff has been mentioned nor the number of counting table is mentioned nor any objection with respect to irregularity of EVMs was taken at the time of counting and, therefore, it cannot be said that all material facts have been given by the election petitioner. The submission ignores various annexures to the election petition which contain all these details. They are part and parcel of election petition. It thus cannot be said that full particulars or material facts have not been given.
79. So far as statutory provisions are concerned, once we are clear in our mind that it is a fact and not the law, full particulars whereof have to be given, the objections raised by the applicant would become superficial lacking any substance. While defining the words "material facts" the Apex Court in Virendra Nath Gautam (supra) stressed that what is absolutely essential is 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 or material facts must be stated in the pleading by the parties. Existence of law is not to be proved by leading any evidence but the Court can take judicial notice thereof. I am, therefore, not inclined to accept that the election petitioner has committed any illegality or irregularity by not annexing relevant extract of Chapter 12 of Handbook for Returning Officers which comprises of the statutory orders issued by the Election Commission in exercise of power under Act 1951 and the election petition can be challenged for violation whereof.
80. In view of the above discussion I find no force in any of the applications.
81. In the result, applications paper No. A-17, A-22, A-16 and A-23 are hereby rejected.
Dated:14.10.2011 Akn.