Kanimozhi Karunanidhi v. A. Santhana Kumar & Ors.

Fernandez & Ors.3, he submitted that failure to plead even a single material fact leads to an incomplete cause of action and the statement of claim becomes bad.

(iv) In the instant case, though the respondent-election petitioner has alleged that the appellant has suppressed facts in the Form No. 26 Affidavit, he has failed to state as to which facts were suppressed, and how there was noncompliance of the provisions of the Constitution or of the Act or the rules made thereunder, which had materially affected the result of the election.

(v) The entire Election petition filed by the respondent is based on vague and bald assumptions, presumptions and conjectures without stating the material facts more particularly the material facts in support of the ground contained in Section 100(1)(d)(iv) of the said Act.

(vi) Lastly, he submitted that though the candidates are required to disclose their status of Income tax, of the 3 1969 (3) SCC 238 assets and liabilities as well as their spouses’ assets and liabilities, if the columns in this regard are not applicable in the fact situation, it could not amount to suppression of facts.

8. The learned Advocate Mr. Mukesh S. for respondent no. 1 made the following submissions:

(i) The appellant has violated the law laid down by this Court in Union of India vs. Association for Democratic Reforms & Anr.4, wherein the Court had directed the Election Commission to get the details of assets and liabilities of the candidates and their family members, without differentiating the status of citizenship.

(ii) The appellant, in response to the query regarding income tax dues of her spouse, had mentioned “NO”. The appellant had failed to disclose the status of filing of income tax return of her spouse in foreign country, as required to be disclosed in the Form No. 26. The appellant had simply stated in the said Form that her spouse was a foreign citizen without disclosing the status 4 2002 (5) SCC 294 of filing of income tax return and the income tax reference number provided in Singapore.

(iii) The appellant was bound to disclose the details of status of filing of income tax return by her spouse in the foreign country and non-disclosure of the same tantamounted to the suppression of facts and non-compliance of the statutory rules framed under the said Act.

(iv) By not disclosing the financial status of her family, the appellant had deprived the opportunity to the voters to decide about the casting of votes.

(v) Lack of transparency and non-disclosure of facts in the

Form No. 26 had materially affected the result of the election. Relevant Provisions of the Constitution of India and of the R.P. Act, 1951:

9. In order to appreciate the rival contentions raised by the learned counsel for the parties, it would be beneficial to refer to some of the relevant provisions contained in the Constitution of India as also the R.P. Act, 1951.

10. Part -XV of the Constitution of India deals with the Elections. The superintendence, direction and control of the preparation of the electoral rolls for, and the conduct of all elections to the Parliament and to the legislature of every State and of elections to the offices of President and Vice-President held under the Constitution have been vested in the Election Commission under Article 324 of the Constitution of India. Article 325 provides that there shall be one general electoral roll for every territorial constituency and that no person shall be ineligible for inclusion in such rolls on the grounds only of religion, race, caste, sex or any of them. Article 326 provides that elections to the House of people and to the legislative assemblies of States shall be on the basis of adult franchise. Article 327 enables Parliament to make laws with respect to all matters relating to elections to either House of Parliament or to the Houses of the legislature of a State. Article 328 enables the legislature of a State, if Parliament has not made such legislation, to make laws with respect to all matters relating to elections to the Houses of legislature of the State. Article 329 bars interference by courts in electoral matters and clause (b) in particular provides that no election to the either House of Parliament or to the House or either House of the legislature of a State shall be called in question except by an election petition presented to such authority and in such manner as may be provided for by or under any law made by the appropriate legislature.

11. So far as the R.P Act, 1951, is concerned, its object as is reflected in its short title is to provide for the conduct of elections of the Houses of Parliament and to the House or Houses of the legislature of each State, the qualifications and the disqualifications for membership of those Houses, the corrupt practices and other offences at or in connection with such elections and the decision of doubts and disputes arising out of or in connection with such elections. Part-VI of the R.P. Act, 1951 deals with the disputes regarding Elections, and Chapter II thereof deals with the presentation of the Election petitions to the High Court. Section 80 thereof states that no election shall be called in question except by an election petition presented in accordance with the provisions of Part-VI.

12. Section 80A confers jurisdiction on the High Court to try election petitions. Section 81 deals with the presentation of petitions which reads as under: “Section 81. Presentation of Petitions- (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 fortyfive 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 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 relates, whether he has voted at such election or not. (2) [***] [(3) Every election petition shall be accompanied by as many 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.]

13. Section 82 mandates as to who shall be the parties to the Election petition. Section 83 pertains to the contents of the petition, which reads as under:-

83. 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 be signed by the petitioner and verified in the manner laid down in the Code of Civil Procedure, 1908 (5 of 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.]

14. As per Section 86, the High Court is empowered to dismiss an election petition which does not comply with the provisions of Section 81 or Section 82 or Section 117. Section 87 deals with the procedure to be followed by the High Court which reads as under:

15. The grounds on which the High Court could declare the election of the returned candidate to be void are enumerated in Section 100 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- (a) --- (b) --- (c) --- (d)that the result of the election, in so far as it concerns a returned candidate, has been materially affected- (i) --- (ii) --- (iii) ---

(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.”

16. In the instant case, the respondent-election petitioner has challenged the election of the appellant on the ground that the result of the election, insofar as it concerned the appellant, was materially affected by non-compliance with Article 324 of the Constitution and by noncompliance with Rule-4A of the said Rules read with Section 33 of the Act. It may be noted that Section 33 of the Act pertains to the presentation of nomination paper and the requirements for a valid nomination. Section 36 pertains to the scrutiny of nominations by the Returning Officer. Sub-section(2) thereof empowers the Returning Officer, either on the objections made to any nomination or on his own motion, to reject any nomination on the grounds mentioned therein. One of the grounds to reject the nomination is, when there has been failure to comply with any of the provisions of Section 33. Sub-section(4) of Section 36 states that the Returning Officer shall not reject any nomination paper on the ground of any defect which is not of a substantial character.

17. Part-II of the Conduct of Election Rules, 1961 deals with the General Provisions. Rule-4 and Rule-4A which pertain to the submission of nomination paper and the Form of affidavit to be filed at the time of delivering nomination paper read as under:-

Legal position:

18. The scheme of the Constitutional and statutory provisions contained in the R.P. Act in relation to the nature of the right to elect, the right to be elected and the right to dispute an election have been explained and interpreted by various Constitutional Benches since 1952. To cite a few are N.P. Ponnuswami vs. Returning Officer, Namakkal Constituency & Ors.5, in Jagan Nath vs. Jaswant Singh & Ors.6, in

Bhikji Keshao Joshi & Anr. vs. Brijlal Nandlal Biyani & Ors.7, in Murarka Radhey Shyam Ram Kumar vs. Roop Singh Rathore & Ors.[8] etc.

19. What has been gleaned from the said authorities may be summed up by stating that a right to elect, though fundamental it is to democracy, is neither a fundamental right nor a common law right. It is purely a statutory right. Similarly, right to be elected and the right to dispute an election are also statutory rights. Since they are statutory creations, they are subject to statutory limitations. An Election petition is not an action at common law, nor in equity. It is a special jurisdiction to be exercised in accordance with the statute creating it. The concept familiar to common law and equity must remain strangers to election law unless statutorily embodied. Thus, the entire election process commencing from the issuance from the notification calling upon a constituency to elect a member or members right upto the final resolution of the dispute, concerning the election is regulated by the Representation of People Act 1951. The said R.P. Act therefore has been held to be a complete and self-contained code within which must be found any rights claimed in relation to an election dispute.

20. In a very interesting and important decision in case of Union of India v/s Association for Democratic Reforms and Another[9], a threejudge Bench of this Court raising a question - in a nation wedded to republican and democratic form of government, whether before casting votes, the voters have a right to know relevant particulars of their candidates contesting election to the Parliament or to the legislature of States, deliberated on the powers of the Election Commission under Article 324 of the Constitution, and observed as under:-

21. It is also pertinent to note that the insertion of Rule-4A and Form-26 appended to the said Rules is also culmination of the said observations made this Court in the aforesaid case, which require the candidate to disclose the information and particulars in the form of affidavit to be submitted along with the nomination paper.

22. The respondent-Election petitioner in this case has challenged election of the appellant-returned candidate under Section 100(1)(d)

(iv) on the ground of non-compliance of the said Rule-4A and the

Form-26. However, the appellant had filed the applications seeking dismissal of the Election petition in limine, for the non-compliance of the provisions of Section 83(1)(a) of the said Act, read with Order VII, Rule 11 of CPC.

23. The law so far developed and settled by this Court with regard to the non-compliance of the requirement of Section 83(1)(a) of the EP Act, namely - “an Election petition must contain a concise statement of material facts on which the petitioner relies”, is that such noncompliance of Section 83(1)(a) read with Order VII, Rule 11, CPC, may entail dismissal of the Election Petition right at the threshold. “Material facts” are facts which if established would give the petitioner the relief asked for. The test required to be answered is whether the court could have given a direct verdict in favour of the election petitioner in case the returned candidate had not appeared to oppose the Election petition on the basis of the facts pleaded in the petition. They must be such facts as would afford a basis for the allegations made in the petition and would constitute the cause of action as understood in the Code of Civil Procedure 1908. Material facts would include positive statement of facts as also positive statement of a negative fact.

24. A Three-Judge Bench in Hari Shanker Jain vs. Sonia Gandhi (supra) had an occasion to deal with Section 83(1)(a) of the RP Act and the Court dismissed the Election petition holding that the bald and vague averments made in the election petitions do not satisfy the requirements of pleading “material facts” within the meaning of Section 83(1)(a) of the RP Act read with the requirements of Order VII Rule 11 CPC. It was observed in para 23 and 24 as under: -

51 mandates that an election petition shall contain a concise statement of the material facts on which the petitioner relies. By a series of decisions of this Court, it is well settled that the material facts required to be stated are those facts which can be considered as materials supporting the allegations made. In other words, they must be such facts as would afford a basis for the allegations made in the petition and would constitute the cause of action as understood in the Code of Civil Procedure, 1908. The expression “cause of action” has been compendiously defined to mean every fact which it would be necessary for the plaintiff to prove, if traversed, in order to support his right to the judgment of court. Omission of a single material fact leads to an incomplete cause of action and the statement of claim becomes bad. The function of the party is to present as full a picture of the cause of action with such further information in detail as to make the opposite party understand the case he will have to meet. (See Samant N. Balkrishna v. George Fernandez [(1969) 3 SCC 238: (1969) 3 SCR 603], Jitendra Bahadur Singh v. Krishna Behari [(1969) 2 SCC 433].) Merely quoting the words of the section like chanting of a mantra does not amount to stating material facts. Material facts would include positive statement of facts as also positive averment of a negative fact, if necessary. In V.S. Achuthanandan v. P.J. Francis [(1999) 3 SCC 737] this Court has held, on a conspectus of a series of decisions of this Court, that material facts are such preliminary facts which must be proved at the trial by a party to establish existence of a cause of action. Failure to plead “material facts” is fatal to the election petition and no amendment of the pleadings is permissible to introduce such material facts after the time-limit prescribed for filing the election petition.

24. It is the duty of the court to examine the petition irrespective of any written statement or denial and reject the petition if it does not disclose a cause of action. To enable a court to reject a plaint on the ground that it does not disclose a cause of action, it should look at the plaint and nothing else. Courts have always frowned upon vague pleadings which leave a wide scope to adduce any evidence. No amount of evidence can cure basic defect in the pleadings.”

25. In case of Mahadeorao Sukaji Shivankar vs. Ramaratan Bapu & Ors.10, a Three-Judge Bench of this Court again had an occasion to deal with the issues as to what would constitute “material facts” and what would be the consequences of not stating the “material facts” in the Election petition, as contemplated in Section 83(1)(a) of the RP Act, and the Court observed as under:

26. In Anil Vasudev Salgaonkar vs. Naresh Kushali Shigaonkar11, this Court has discussed number of earlier decisions on the issue as to when the Election petition could be dismissed summarily if it does not furnish the cause of action in exercise of powers under the Code of Civil Procedure read with Section 83 of the R.P. Act.

53. In Udhav Singh case [(1977) 1 SCC 511] this Court observed as under: (SCC pp. 522-23, para 41) “41. Like the Code of Civil Procedure, this section also envisages a distinction between ‘material facts’ and ‘material particulars’. Clause (a) of sub-section (1) corresponds to Order 6 Rule 2, while clause (b) is analogous to Order 6 Rules 4 and 6 of the Code. The distinction between ‘material facts’ and ‘material particulars’ is important because different consequences may flow from a deficiency of such facts or particulars in the pleading. 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. If the petition is based solely on those allegations which suffer from lack of material facts, the petition is liable to be summarily rejected for want of a cause of action. In the case of a petition suffering from a deficiency of material particulars, the court has a discretion to allow the petitioner to supply the required particulars even after the expiry of limitation.”

54. In H.D. Revanna case [(1999) 2 SCC 217] the appeal was filed by the candidate who had succeeded in the election and whose application for dismissal of the election petition in limine was rejected by the High Court. This Court noticed that it has been laid down by this Court that non-compliance with the provisions of Section 83 may lead to dismissal of the petition if the matter falls within the scope of Order 6 Rule 16 and Order 7 Rule 11 of the Code of Civil Procedure. In Harmohinder Singh Pradhan v. Ranjeet Singh Talwandi [(2005) 5 SCC 46] this Court observed thus: (SCC p. 51, para 14) “14. Necessary averment of facts constituting an appeal on the ground of ‘his religion’ to vote or to refrain from voting would be material facts within the meaning of clause (a) of sub-section (1) of Section 83 of the Act. If such material facts are missing, they cannot be supplied later on, after the expiry of period of limitation for filing the election petition and the plea being deficient, can be directed to be struck down under Order 6 Rule 16 of the Code of Civil Procedure, 1908 and if such plea be the sole ground of filing an election petition, the petition itself can be rejected as not disclosing a cause of action under clause (a) of Rule 11, Order 7 of the Code.”

55. In Harkirat Singh v. Amrinder Singh [(2005) 13 SCC 511] this Court again reiterated the distinction between “material facts” and “material particulars” and observed as under: (SCC p. 527, paras 51-52) “51. 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.

52. All ‘material facts’ must be pleaded by the party in support of the case set up by him. 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, hence, will entail dismissal of the suit or petition. Particulars, on the other hand, are the details of the case which is in the nature of evidence a party would be leading at the time of trial.”

56. In Sudarsha Avasthi v. Shiv Pal Singh [(2008) 7 SCC 604] this Court observed as under: (SCC p. 612, para 20) “20. The election petition is a serious matter and it cannot be treated lightly or in a fanciful manner nor is it given to a person who uses this as a handle for vexatious purpose.”

57. 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. The election petition must contain a concise statement of “material facts” on which the petitioner relies.

58. There is no definition of “material facts” either in the Representation of the People 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. This Court in Harkirat Singh case [(2005) 13 SCC 511] tried to give various meanings of “material facts”. The relevant para 48 of the said judgment is reproduced as under: (SCC pp. 526-27) “48. 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 (3rd Edn.), p. 349.] The phrase ‘material facts’, therefore, may be said to be those facts upon which a party relies for its 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.”

27. In Ram Sukh vs. Dinesh Aggarwal (supra), this Court again while examining the maintainability of Election petition filed under Section 100(1)(d)(iv) of the RP Act, elaborately considered the earlier decisions and observed that it was necessary for the election petitioner to aver specifically in what manner the result of the election in so far as it concerned the returned candidate was materially affected due to omission on the part of the Returning Officer. The Court in the said case having found that such averments being missing in the Election petition, upheld the judgment of the High Court/Election Tribunal rejecting the Election petition at the threshold. The Court observed in para 14 to 21 as under: -

16. The distinction between “material facts” and “particulars” and their requirement in an election petition was succinctly brought out by this Court in Virender Nath Gautam v. Satpal Singh [(2007) 3 SCC 617] wherein C.K. Thakker, J., stated thus: (SCC pp. 631-32, para 50) “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.”

17. Now, before examining the rival submissions in the light of the aforestated legal position, it would be expedient to deal with another submission of the learned counsel for the appellant that the High Court should not have exercised its power either under Order 6 Rule 16 or Order

(i) that even if the election petition was liable to be dismissed ultimately, it should have been dismissed only after affording an opportunity to the election petitioner to adduce evidence in support of his allegation in the petition, and

(ii) since Section 83 does not find a place in Section 86 of the Act, rejection of the petition at the threshold would amount to reading into sub-section (1) of Section 86 an additional ground. In our opinion, both the contentions are misconceived and untenable.

18. Undoubtedly, by virtue of Section 87 of the Act, the provisions of the Code apply to the trial of an election petition and, therefore, in the absence of anything to the contrary in the Act, the court trying an election petition can act in exercise of its power under the Code, including Order 6 Rule 16 and Order 7 Rule 11 of the Code. The object of both the provisions 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. If that is so in matters pertaining to ordinary civil litigation, it must apply with greater vigour in election matters where the pendency of an election petition is likely to inhibit the elected representative of the people in the discharge of his public duties for which the electorate have reposed confidence in him. The submission, therefore, must fail.

19. Coming to the second limb of the argument viz. absence of Section 83 in Section 86 of the Act, which specifically provides for dismissal of an election petition which does not comply with certain provisions of the Act, in our view, the issue is no longer res integra. A similar plea was negatived by a three-Judge Bench of this Court in Hardwari Lal v. Kanwal Singh [(1972) 1 SCC 214], wherein speaking for the Bench, A.N. Ray, J. (as His Lordship then was) said: (SCC p. 221, para 23) “23. Counsel on behalf of the respondent submitted that an election petition could not be dismissed by reason of want of material facts because Section 86 of the Act conferred power on the High Court to dismiss the election petition which did not comply with the provisions of Section 81, or Section 82 or Section 117 of the Act. It was emphasised that Section 83 did not find place in Section 86. Under Section 87 of the Act every election petition shall be tried by the High Court as nearly as may be in accordance with the procedure applicable under the Code of Civil Procedure, 1908, to the trial of suits. A suit which does not furnish cause of action can be dismissed.”

20. The issue was again dealt with by this Court in Azhar Hussain v. Rajiv Gandhi [1986 Supp SCC 315]. Referring to earlier pronouncements of this Court in Samant N. Balkrishna [(1969) 3 SCC 238] and Udhav Singh v. Madhav Rao Scindia [(1977) 1 SCC 511] wherein it was observed that the omission of a single material fact would lead to incomplete cause of action and that an election petition without the material facts is not an election petition at all, the Bench in Azhar Hussain case [1986 Supp SCC 315] held that all the facts which are essential to clothe the petition with complete cause of action must be pleaded and omission of 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.

21. We may now advert to the facts at hand to examine whether the election petition suffered from the vice of nondisclosure of material facts as stipulated in Section 83(1) (a) of the Act. As already stated the case of the election petitioner is confined to the alleged violation of Section 100(1)(d)(iv). For the sake of ready reference, the said provision is extracted below: “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, insofar 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.” It is plain that in order to get an election declared as void under the said provision, the election petitioner must aver that on account of non-compliance with the provisions of the Constitution or of this Act or of any rules or orders made under the Act, the result of the election, insofar as it concerned the returned candidate, was materially affected.”

28. The legal position enunciated in afore-stated cases may be summed up as under:i. Section 83(1)(a) of RP Act, 1951 mandates that an Election petition shall contain a concise statement of material facts on which the petitioner relies. If material facts are not stated in an Election 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 7 of the Code. ii. The material facts must be such facts as would afford a basis for the allegations made in the petition and would constitute the cause of action, that is every fact which it would be necessary for the plaintiff/petitioner to prove, if traversed in order to support his right to the judgement of court. Omission of a single material fact would lead to an incomplete cause of action and the statement of plaint would become bad. iii. Material facts mean the entire bundle of facts which would constitute a complete cause of action. Material facts would include positive statement of facts as also positive averment of a negative fact, if necessary. iv. In order to get an election declared as void under Section 100(1)(d)(iv) of the RP Act, the Election petitioner must aver that on account of non-compliance with the provisions of the Constitution or of the Act or any rules or orders made under the Act, the result of the election, in so far as it concerned the returned candidate, was materially affected. v. The Election petition is a serious matter and it cannot be treated lightly or in a fanciful manner nor is it given to a person who uses it as a handle for vexatious purpose. vi. An Election petition can be summarily dismissed on the omission of a single material fact leading to an incomplete cause of action, or omission to contain a concise statement of material facts on which the petitioner relies for establishing a cause of action, in exercise of the powers under Clause (a) of Rule 11 of Order VII CPC read with the mandatory requirements enjoined by Section 83 of the RP Act. Conclusion:

29. In the light of the afore-stated legal position, let us see whether the respondent/election petitioner had complied with the requirements of Section 83(1)(a) of the RP Act, by stating “material facts” in the Election petition, constituting cause of action and the ground as contemplated in Section 100(1)(d)(iv) of the RP Act, for declaring the election of the Appellant-returned candidate to be void. The bone of contention raised by the learned counsel appearing for the respondent-election petitioner is that the Election Commission of India had called for the information prescribing the Form 26 in regard to status of filing of income tax return of candidates and their family members by exercising powers under Article 324 of the Constitution of India and in that the petitioner had provided information that her spouse was working as consultant at foreign country and earning salary against the column No. 8, Serial No.9(b) and 9A(b), respectively under Part A of Form 26. Besides, she had mentioned “No” to the query regarding Income tax dues of her spouse, (mentioned as “Ethumilai” in Tamil language). She had further stated that her spouse had bank accounts in Singapore with deposit of dollars against column No. 7 Serial No.(ii) of column in Part A of Form 26 but had failed to disclose the status of filing income tax return of her spouse in the foreign country. He therefore submitted that these material facts which have already been stated in the Election petition, were sufficient to constitute cause of action for filing Election petition under Section 100(1)(d)(iv) of the RP Act.

30. It may be noted the precise allegations made by the respondentelection petitioner in para 5 to 9 of his Election petition have already been reproduced hereinbefore, from which it clearly transpires that the election petitioner i.e., the respondent has made very bald and vague allegations without stating the material facts as to how there was non-compliance of any of the provisions of the Constitution of India or of the RP Act or of the rules made thereunder. If the averments made in the Election petition are read in juxtaposition to the information furnished by the appellant-returned candidate in Form No. 26, it clearly emerges that against the information sought about the PAN number of the spouse of the appellant, it has been stated that “No PAN No.”, “Spouse K. Aravindhan Foreign Citizenship”. Against the information sought with regard to “The financial year for which the last income tax return has been filed”, the information supplied by the appellant about her spouse is “Not applicable”. The appellant has filled in all the columns of Form No. 26 by furnishing the information with regard to her Permanent Account Number and status of filing of income tax return etc. and of her husband wherever applicable. If according to the respondent-election petitioner, the appellant-returned candidate had suppressed the Permanent Account Number of her spouse and also about the non-payment of income tax of her spouse in the foreign country, it was obligatory on the part of the Election petitioner to state in the Election petition as to what was the Permanent Account Number of the spouse of the returned candidate in India which was suppressed by her and how the other details furnished about her husband in the said Form No. 26 were incomplete or false.

31. Mere bald and vague allegations without any basis would not be sufficient compliance of the requirement of stating material facts in the Election Petition. As well settled not only positive statement of facts, even a positive statement of negative fact is also required to be stated, as it would be a material fact constituting a cause of action. The material facts which are primary and basic facts have to be pleaded by the Election petitioner in support of the case set up by him to show his cause of action and omission of a single material fact would lead to an incomplete cause of action, entitling the returned candidate to pray for dismissal of Election petition under Order VII Rule 11(a) CPC read with Section 83(1)(a) of the RP Act.

32. It is also significant to note that an affidavit in Form 26 along with the nomination paper, is required to be furnished by the candidate as per Rule 4A of the said Rules read with Section 33 of the said Act. The Returning Officer is empowered either on the objections made to any nomination or on his own motion, to reject any nomination on the grounds mentioned in Section 36(2), including on the ground that there has been a failure to comply with any of the provisions of Section 33 of the Act. However, at the time of scrutiny of the nomination paper and the affidavit in the Form 26 furnished by the Appellant-returned candidate, neither any objection was raised, nor the Returning Officer had found any lapse or non-compliance of Section 33 or Rule 4A of the Rules. Assuming that the election petitioner did not have the opportunity to see the Form No. 26 filled in by the Appellant-returned candidate, when she submitted the same to the Returning Officer, and assuming that the Returning Officer had not properly scrutinized the nomination paper of the appellant, and assuming that the election petitioner had a right to question the same by filing the Election petition under Section 100(1)(d)(iv) of the said Act, then also there are no material facts stated in the petition constituting cause of action under Section 100(1)(d)(iv) of the RP Act. In absence of material facts constituting cause of action for filing Election petition under Section 100(1)(d)(iv) of the said Act, the Election petition is required to be dismissed under Order VII Rule 11(a) CPC read with Section 13(1)(a) of the RP Act.

33. As elaborately discussed earlier, Section 83(1)(a) of RP Act mandates that an Election petition shall contain a concise statement of material facts on which petitioner relies, and which facts constitute a cause of action. Such facts would include positive statement of facts as also positive averment of negative fact. Omission of a singular fact would lead to incomplete cause of action. So far as the present petition is concerned, there is no averment made as to how there was non-compliance with provisions of the Constitution or of RP Act or of the Rules or Order made thereunder and as to how such non-compliance had materially affected the result of the election, so as to attract the ground under Section 100(1)(d)(iv) of the RP Act, for declaring the election to be void. The omission to state such vital and basic facts has rendered the petition liable to be dismissed under Order VII, Rule 11(a) CPC read with Section 83(i)(a) of the RP Act,

1951.

34. In that view of the matter, Election petition being no. 3/2019 filed by the respondent-election petitioner deserves to be dismissed, and is accordingly dismissed.

35. The impugned judgment of the High Court is set aside. The appeals stand allowed accordingly. … .................................. J. [AJAY RASTOGI] … .................................. J. [BELA M. TRIVEDI] NEW DELHI;