1. Election Petition No. 5 of 2004 and Election Petition No. 8 of 2004 were connected with Election Petition No. 4 of 2004. Controversy involved and ground raised in these election petitions are almost identical, hence, decided by present common judgement. Factual narration with regard to biennial election of Rajya Sabha/Apar House has already been made in Election Petition No. 4 of 2004, hence, it is not necessary to repeat.
2. Election Petition No. 5 of 2004 has been filed by Shri Promod Kumar Tewari, who is a member of legislative assembly. Election Petition No. 8 of 2004 has been filed by the petitioner with the pleading that he has been sponsored by Indian National Congress. Grounds enumerated in both the election petitions are almost identical with addition to new facts.
3. In election petition no. 5 of 2004 the petitioner in para 9,30,31 and 33 had pleaded the involvement of corrupt practice in election. Pleading of corrupt practice has also been contained the election petition no. 8 of 2004. However, in both the election petitions affidavit in prescribed Form 25 has not been filed, which is fatal in view of law discussed in Election Petition No. 4 of 2004. Apart from above in Election Petition No. 5 of 2004 the notices was issued on 5.10.2004 but it appears that the process was not filed within a week, required in the Rules of the Court. It was filed on 29.10.2004. It also borne out from the order sheet dated 26.9.2005 that copy of the election petition was not supplied to a respondents and copy served on them does not tally with the paper book of the court. Order sheet dated 26.9.2005 further reveals that on court's direction the petitioner had taken steps to supply the copy of election petition on respondent no. 3. Thus there is flagrant violation of Rules of the Court in pursuing the election petition.
4. In both the election petitions neither the petitioner nor their counsel were appeared to advance their arguments. Shri S.N.Shukla learned counsel appeared for petitioner in Election Petition No. 4 of 2004 had proceeded to defend the cause of election petitioners.
5. In election petition no. 5 of 2004 the list of documents has been filed which indicate six documents but the same is not on record and an applications was moved for summoning of record which was never pressed by the petitioner.
6. Apart from above in both these election petitions the petitioner had defended the nomination of Madan Mohan, who filed election 4 petition no. 4 of 2004. Knowledge has also been derived from the information communicated by Shri Madan Mohan while filing affidavit. Election petition filed by Madan Mohan has been dismissed by separate order. Accordingly, the common ground existing in these election petitions does not contain the material facts and also does not furnish the cause of action under the Code of Civil Procedure. The source of knowledge has not been disclosed. Reliance has been placed from the information received by Shri Madan Mohan seems to be here say and not sustainable more so when the election petition filed by Shri Madan Mohan has been dismissed by separate order.
7. All materials facts with regard to corrupt practices coupled with source of knowledge are missing and also can not be considered in the absence of Affidavit in Form 25 read with Rule 94 A of the Rules. In the written argument filed by Shri S.N.Shukla who appeared on behalf of petitioners nothing has been brought on record to falsify the grounds taken by respondents in their applications. In Election Petition No. 8 of 2004 there is no specific pleading along with documents to establish that the petitioner Harendra had filed Form 26 in prescribed format. Para 83,84,85 of the election petition no. 8 of 2004 relates to allegation of corrupt practices. In para 60 to 64 the case of Shri Madan Mohan has been dealt with.
8. It has been stated that election petition was not filed in duplicate in view of Order 7 Rule 11 (E) of the CPC. But during the course of arguments attention of the court has not been invited towards any material on record that the election petition was filed in duplicate.
9. Apart from various judgment referred while deciding and 5 dismissing the election petition no. 4 of 2004 it shall be appropriate to refer the recent judgment of Hon'ble Supreme Court reported in JT 2009 (10) SC 684, Anil Vasudev Salgaonkar Vs. Naresh Kushali Shigaonkar where Hon'ble Supreme Court had held that in the absence of specific pleading with regard to material facts, discloser of source of information and in the absence of material pleading with regard to cause of action in terms of Code of Civil Procedure, election petition may be summarily dismissed. It has further been held by Hon'ble Supreme Court that omission of single material fact would lead to an incomplete cause of action. It shall be appropriate to reproduce relevant paras from the Anil Vasudev Salgaonkar's case (supra), which is as under:-
23. According to the appellant, the High Court had erroneously held that the election petition is not liable to be dismissed in limine under section 86 of the Act for alleged non-compliance of the provisions of section 83(1) of the Act.
24. In the impugned judgment, the High Court erroneously concluded that the election petition when read as a whole discloses that it has material facts stated and regarding which triable issues are also framed and, therefore, it cannot be rejected at the preliminary stage.
52. The position is well settled that an election petition can be summarily dismissed if it does not furnish the cause of action in exercise of the power under the Code of Civil Procedure. Appropriate orders in exercise of powers under the Code can be passed if the mandatory requirements enjoined by Section 83 of the Act to incorporate the material 6 facts in the election petition are not complied with.
53. This Court in Samant N. Balkrishna's case (supra) has expressed itself in no uncertain terms that the omission of a single material fact would lead to an incomplete cause of action and that an election petition without the material facts relating to a corrupt practice is not an election petition at all.
62. It is settled legal position that all "material facts" must be pleaded by the party in support of the case set up by him within the period of limitation. 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 will entail dismissal of the election petition.
63. The election petition must contain a concise statement of "material facts" on which the petitioner relies. There is no definition of "material facts" either in the Representation of Peoples Act, 1951 nor in the Code of Civil Procedure. In a series of judgments, this court has laid down that all facts necessary to formulate a complete cause of action should be termed as "material facts". All basic and primary facts which must be proved by a party to establish the existence of cause of action or defence are material facts. "Material facts" in other words mean the entire bundle of facts which would constitute a complete cause of action.
65. In the context of a charge of corrupt practice, "material facts" would mean all basic facts constituting the ingredients of the particular corrupt practice alleged, which the petitioner (respondent 7 herein) is bound to substantiate before he can succeed on that charge. It is also well-settled that if "material facts" are missing they cannot be supplied after expiry of period of limitation for filing the election petition and the pleading becomes deficient.
10. Keeping in view the aforesaid judgment of Hon'ble Supreme Court and law discussed in Election Petition No. 4 of 2004, the petitioners seems to have been failed to brought on record the material facts and cause of action Affidavit has not been filed to verify corrupt practice in Form 25 in view of law discussed while deciding the election petition no. 4 of 2004. The applications are liable to be allowed, hence, allowed in consequence thereof these election petitions are also dismissed summarily. Cost made easy.
[Justice Devi Prasad Singh] 22nd January, 2010 Madhu