Nandiesha Reddy got elected to the Karnataka Assembly in the general election from K.R.Pura Assembly Constituency held on 10th of May, 2008. His election was challenged by Kavitha Mahesh, inter alia, on the ground that her nomination was illegally not accepted by the Returning Officer 2 which rendered Nandiesha Reddy's election void. Nandiesha Reddy (hereinafter to be referred to as `the Returned Candidate') filed two applications; one under Order VI Rule 16 of the Code of Civil Procedure for striking out pleading from the election petition and another under Sections 83 and 86 of the Representation of the People Act, 1951 (hereinafter to be referred to as `the Act') read with Order VII Rule 11 of the Code of Civil Procedure, 1908 for dismissal of the election petition. The Karnataka High Court by the impugned orders dated 8th October, 2009 and 12th November, 2009 dismissed the aforesaid applications. apex court upheld the same.

                                               REPORTABLE
          IN THE SUPREME COURT OF INDIA

          CIVIL APPELLATE JURISDICTION

          CIVIL APPEAL NO......5142............OF 2011
      (Arising out of S.L.P.(C)No.14286 of 2010)

Nandiesha Reddy                                Appellant


                          Versus


Mrs.Kavitha Mahesh                             Respondent


                          With


          CIVIL APPEAL NO......5143............OF 2011
      (Arising out of S.L.P.(C)No.16337 of 2010)

N.S. Nandish Reddy                             Appellant


                          Versus


Mrs. Kavitha Mahesh                            Respondent



                     J U D G M E N T



CHANDRMAULI KR.PRASAD,J.



1.    Nandiesha Reddy got elected to the Karnataka


Assembly   in   the   general   election   from   K.R.Pura


Assembly   Constituency   held   on   10th  of   May,   2008.


His   election   was   challenged   by   Kavitha   Mahesh,


inter alia, on the ground that her nomination was


illegally   not   accepted   by   the   Returning   Officer


                              2



which   rendered   Nandiesha   Reddy's   election   void.


Nandiesha Reddy (hereinafter to be referred to as


`the Returned Candidate') filed two applications;


one under Order VI Rule 16 of the Code of Civil


Procedure   for   striking   out   pleading   from   the


election   petition   and   another   under   Sections   83


and   86   of   the   Representation   of   the   People   Act,


1951 (hereinafter to be referred to as `the Act')


read with Order VII Rule 11 of the Code of Civil


Procedure,   1908   for   dismissal   of   the   election


petition.   The   Karnataka   High   Court   by   the


impugned   orders   dated   8th  October,   2009   and


12th      November,   2009   dismissed   the   aforesaid


applications.



2.       The   Returned   Candidate   assails   aforesaid


orders in the present Special Leave Petitions.



3.       Leave granted.



4.       Short   facts   giving   rise   to   the   present


appeals are that the Election Commission of India


on   16th  of   April,   2008   notified   its   intention   to


hold   General   election   to   the   Karnataka   State


                                 3



Legislative   Assembly   and   announced   the   election


schedule.   According   to   the   schedule,   the   last


date for submission of the nomination was 23rd  of


April,   2008   whereas   the   scrutiny   of   the


nomination papers was to be undertaken on 24th  of


April, 2008.   The date of election fixed was 10th


of   May,   2008.   Kavitha   Mahesh   (hereinafter


referred to as `the Election Petitioner') was an


electorate   in   the   combined   Varthur   Assembly


Constituency   prior   to   de-limitation.   After   de-


limitation   the   said   constituency   has   been   split


into         three         constituencies,         namely         (i)


Mahadevapura   (ii)   C.V.Raman   Nagar   and   (iii)


K.R.Pura.   After   the   de-limitation,   the   Election


Petitioner's name appeared in the electoral roll


of   C.V.Ramana   Nagar   Constituency.   In   order   to


contest   the   election   from   K.R.Pura   Assembly


Constituency,   according   to   the   Election


Petitioner, on 19th  of April, 2008 she obtained a


set   of   nomination   forms   from   the   Returning


Officer.   It   is   her   case   that   on   23rd  of   April,


2008   at   about   2.00   P.M.   she   delivered   the


                             4



nomination papers together with all annexures to


the   Returning   Officer   and   requested   him   to


furnish   the   latest   electoral   roll   of   K.R.Pura


Assembly Constituency in order to extract the new


part   number   and   serial   number   of   the   proposers


who   had   signed   on   the   nomination   papers   for


incorporating the same in the appropriate column


against   their   respective   names.   It   is   alleged


that the Returning Officer instead of furnishing


the   latest   electoral   roll   of   K.R.Pura   Assembly


Constituency,   asked   the   Election   Petitioner   to


approach   the   Revenue   Office   to   obtain   those


details.  It has specifically been averred by the


Election Petitioner that she went to the Revenue


Office   but   could   not   get   those   details   from   the


Revenue   Officer   and   therefore,   she   went   to   file


the nomination papers, presented the same before


the Returning Officer but it was not received. It


is her allegation that, thereafter, she attempted


to   give   a   handwritten   representation   to   the


Returning   Officer   but   the   same   was   also   not


accepted.     Hence   she   left   the   place   without


                              5



filing the nomination. It is also her allegation


that on 28th of April, 2008, she filed a complaint


in   this   regard   before   the   Chief   Election


Commissioner.



5.    The   election   was   held   on   10th  of   May,   2008


and its result was published on 27th  of May, 2008


in   which   the   Returned   Candidate   was   declared


elected   from   K.R.Pura   Assembly   Constituency.


This was challenged by the Election Petitioner in


an   election   petition   before   the   Karnataka   High


Court.     The   Election   of   the   Returned   Candidate


was   sought   to   be   declared   null   and   void   on   the


ground   of   illegal   rejection   of   nomination   paper


at threshold by the Returning Officer.



6.    As   usual,   the   Returned   Candidate   filed


applications   for   striking   out   various   paragraphs


from the election petition.   This was registered


as   Misc.   Civil   No.   15204   of   2009.     Another


application   for   dismissal   of   the   election


petition was filed which was registered as Misc.


Civil No. 15772 of 2009.   In this application it


                             6



was   pointed   out   that   as   the   Election   Petitioner


was   not   a   candidate   set   up   by   any   recognised


political   party,   for   valid   nomination   according


to first proviso of Section 33 (1) of the Act the


nomination paper was required to be subscribed by


ten electors of the constituency. It was further


pointed   out   that   the   Election   Petitioner   shall


not   be   deemed   to   be   duly   nominated   for   election


from   the   constituency   as   she   had   not   made   any


deposit as required under Section 34 of the Act.


The   Returned   Candidate   further   alleged   non-


compliance   of   Section   81(3)   of   the   Act   and


contended that he has not been furnished with the


true   attested   copy   of   the   election   petition   and


its   annexures   as   presented   to   the   Court.   The


Returned   Candidate   also   sought   dismissal   of   the


election petition on the ground that the same did


not   contain   concise   statement   of   the   material


facts on which the Election Petitioner relied and


the   material   facts   averred   did   not   disclose   any


cause of action for the relief sought for.


                             7



7.    All   these   pleas   raised   by   the   Returned


candidate were considered and have been overruled


by   the   High   Court   by   the   impugned   orders.   While


rejecting the application (Civil Misc. No. 15204


of   2009)   for   striking   out   the   pleading   from   the


election   petition   by   order   dated   8th  October,


2009, the High Court observed as follows:




          "53.   It   is   for   this   reason,   I   am   of
          the   view   that   the   pleadings   in   the
          petition does not warrant striking off
          and   assuming   that   some   pleadings   are
          really   not   necessary,   ultimately   if
          the   retaining   or   permitting   the
          pleading   to   exist   does   not   result   in
          any   prejudice   or   embarrassment   to   the
          respondent and at any rate, if at all
          there   being   certain   complaint   or
          allegation   against   the   returning
          officer   and   his   failure   to   adhere   to
          the   duties   in   terms   of   the   statutory
          provisions   and   that   being   a   relevant
          plea   in   the   context   of   wrongful
          rejection of a nomination paper, I am
          of the view that there is no occasion
          to   strike   out   the   pleadings   as   is
          sought   to   be   made   out   in   the
          application."



8.    The High Court rejected Civil Misc. No. 15772


of 2009 by order dated 12th  of November, 2009 and


while considering the plea that the averments in


                             8



the election petition did not disclose any cause


of action for granting the relief in terms of the


prayer the High Court observed as follows:


        " 55.     Whether   the   nomination   as   was
        delivered   to   the   returning   officer   by
        the   petitioner   as   a   candidate   at   1400
        hours on 23-4-2088 in fact, did  amount
        to  a  valid  nomination  within  the  scope
        of the provisions of Section 33 or not,
        is  not  a  question  that  surfaces  itself
        for   examination   at   this   stage,   but
        later   and   for   the   purpose   of   applying
        the   drastic   penal   provision   of   Order
        VII   Rule   11(a)   CPC,   we   have   to
        necessarily accept the plea at its face
        value   and   not   by   seeking   for   further
        elaboration   or   for   the   proof   for   the
        same.


        56. ............. in my considered opinion, the
        petition   averments   contain   sufficient
        plea to disclose a cause of action and
        for   granting   relief   in   terms   of   the
        prayer.   It   is,   therefore,   in   my
        opinion,   that   the   election   petition
        cannot   be   dismissed   on   the   application
        [filed   by   the   respondent-   returned
        candidate]   applying   the   test   of   the
        provisions   of   Order   VII   Rule   11   (a)
        CPC."



9.    As   regards   the   plea   of   non-deposit   as


required   under   Section   34   of   the   Act,   the   High


Court observed as follows:


       " 105.                     Responding   to   this
       contention,   petitioner   has   submitted
       that while the deposit is a requirement


                              9



      in law, a deposit can be made till the
      last  moment;  that  there  was  still  time
      for   presenting   the   nomination   paper,
      that   when   the   petitioner   attempted   to
      present   the   nomination   paper,   time   for
      presentation   had   not   yet   come   to   an
      end;  that  even  assuming  that  there  was
      no deposit, it was the bounden duty of
      the  returning  officer  to  point  out  the
      requirement   of   deposit   fee   and   enable
      the   candidate   to   arrange   for   deposit
      and   it   is   only   thereafter   if   the
      deposit   is   not   made   before   the   expiry
      of   time   of   filing   of   nomination,   then
      alone,  the  provisions  of  Section  34  of
      the Act can be said to come into play;
      that   the   provisions   of   sub-section   (4)
      of Section 36 of the Act takes care of
      the situation and such a situation will
      arise   only   when   the   returning   Officer
      having   consciously   and   deliberately
      avoided         even         scrutinizing         the
      nomination   papers,   by   not   even
      receiving   the   nomination   paper,   the
      argument is only hypothetical and is of
      no   consequence   in   determining   the
      validity   of   the   election   petition   nor
      the validity of the nomination paper.


      106.   I   have   bestowed   my   attention   to
      the   submission   made   at   the   bar   and   I
      find   that   the   argument   is   really
      hypothetical,   particularly   as   the
      returning officer had not even cared to
      look  into  the  nomination  paper,  as  was
      presented   by   the   petitioner-candidate
      or on her behalf by her supporters."


     As regards the plea of the Returned Candidate


that the Election Petitioner did not furnish the


copy   of   the   election   petition   and   its   annexures


                             10



as was presented to the Court and that the copies


were   not   duly   attested,   the   High   Court   answered


the same in the following words:


              ".   .   .   What   had   been   filed   as
         election   petition   and   annexures   with
         the   registry   at   the   time   of   initial
         presentation   have   all   been,   without
         dispute,   furnished   to   the   respondent.
         Even a discrepancy with regard to the
         so-called   index,   which   has   to   be
         construed   as   a   list   of   documents,   in
         my   considered   opinion,   does   not   make
         any   difference   for   the   understanding
         of   the   contents   of   the   petition     and
         the   manner     in   which   the   election
         petitioner   has   sought   for   relief   in
         the   election   petition   and   the   grounds
         and   materials   relied   upon   by   the
         petitioner,   as   copies   of   all   original
         documents   are   provided   to   the
         respondent   and   even   on   a   comparative
         perusal   of   the   papers   in   the   court,
         with   the   copies   as   received   by   the
         respondent-returned   candidate   made
         available   by   the   learned   counsel   for
         the   respondent,     I   do   not   find   any
         additional papers having been filed by
         the petitioner copies of which are not
         made   available   to   the   respondent   in
         the   sense,   which   can   make   a   material
         difference   to   the   respondent   to
         understand   the   precise   case   of   the
         petitioner, which is not given by the
         election petitioner and therefore I am
         of   the   view   that   this   is   not   a
         situation   warranting   dismissal   of   the
         election   petition   under   Section   86   of
         the   Act,   on   the   premise   of   non-
         compliance with the requirement of the
         provisions of Section 81 of the Act."


                             11



     The   Returned   Candidate's   pleas   that   the


election   petition   does   not   contain   concise


statement of material facts as contemplated under


Section   83   (1)   of   the   Act   and   has   not   been


verified   in   the   manner   as   laid   down   under   Order


VI Rule 15 (1) of the Act have also been rejected


by the High Court. The High Court reproduced the


verification   in   its   impugned   judgment   and   found


the   same   to   be   in   three   parts   and   observed   as


follows:


              ".........   part-I   is   within   the
         knowledge of the petitioner, para-II
         based   on   the   information   and   belief
         and part-III on the information that
         the   petitioner   believes   to   be   true
         etc.   In   my   considered   view,   the
         verification even as it stands as of
         now,   and   with   reference   to   the
         manner   of   presentation   of   the
         petition   and   having   trifurcated   or
         separated   the   petition   to   parts,
         sufficiently   and   in   substantial
         manner complies with the requirement
         of   verification,   In   terms   of   clause
         -c of sub-section (1) of Section 83
         of   the   Act   and   therefore   this
         argument cannot be one to reject the
         election   petition   at   the   threshold,
         on   the   premise   that   certain
         requirements   in   law   are   not
         fulfilled."


                             12



10. Mr.   Dushyant   Dave,   learned   Senior   Counsel


appearing   on   behalf   of   the   appellant   points   out


that from the averments in the election petition


it is apparent that Election Petitioner was not a


candidate set up by a recognised political party


and   her   nomination   was   not   subscribed   by   10


electors.Accordingly he submits that the Election


Petitioner cannot be considered to be a candidate


so   as   to   maintain   the   election   petition.     He


draws   our   attention   to   the   first   proviso   of


Section 33 of the Act and points out that for a


valid   nomination   it   has   to   be   subscribed   by   10


electors.     In   support   of   the   submission   learned


counsel   for   the   appellant   relies   on   a


Constitution Bench judgment of this Court in the


case   of  Mithilesh   K.   Sinha   v.   Returning   Officer


for Presidential Election 1993 Supp. (4) SCC 386

and   our   attention   is   drawn   to   paragraphs   30   and


31 of the judgment which read as under:


        "    30.  To   be   entitled   to   present   an
        election   petition   calling   in   question
        an election, the petitioner should have
        been   a   `candidate'   at   such   election
        within the meaning of Section 13(a) for


                     13



which   he   should   have   been   "duly
nominated   as   a   candidate"   and   this   he
cannot   claim   unless   the   mandatory
requirements   of   Section   5-B(1)(a)   and
Section 5-C were complied by him. Where
on   undisputed   facts   there   was   non-
compliance   of   any   of   these   mandatory
requirements   for   a   valid   nomination,
the   petitioner   was   not   a   `candidate'
within   the   meaning   of   Section   13(a)
and, therefore, not competent according
to   Section   14-A   to   present   the
petition.


31. It is also settled by the decisions
of this Court that in order to have the
requisite locus standi as a `candidate'
within the meaning of Section 13(a) for
being   entitled   to   present   such   an
election   petition   in   accordance   with
Section  14-A  of  the  Act  the  petitioner
must   be   duly   nominated   as   a   candidate
in   accordance   with   Section   5-B(1)(a)
and   Section   5-C.   Unless   it   is   so   the
petitioner   cannot   even   claim   to   have
been   duly   nominated   as   a   candidate   at
the   election   as   required   by   Section
13(a).   The   above   conclusion   in   respect
of   the   nomination   paper   of   the
petitioner, Mithilesh Kumar Sinha, from
the   facts   set   out   by   him   in   the
petition,  stated  by  him  at  the  hearing
and evident from the documents filed by
him makes it clear that the petitioner,
Mithilesh   Kumar   Sinha,   has   no   locus
standi to challenge the election of the
returned   candidate,   Dr   Shanker   Dayal
Sharma   as   he   is   not   competent   to
present   the   election   petition   in
accordance with Section 14-A of the Act
read   with   Order   39   Rule   7   of   Supreme
Court   Rules.   Even   otherwise   the   ground
under   Section   18(1)(c)   of   the   Act   of


                            14



      wrongful   rejection   of   his   nomination
      paper   urged   in   the   election   petition
      does   not   give   rise   to   a   triable   issue
      on the above facts and the irresistible
      conclusion   therefrom.   The   material
      facts to make out a prima facie case of
      existence of that ground are lacking in
      the pleadings and squarely negatived by
      petitioner's own statement."


    Reliance   has   also   been   placed   on   a   decision


of this Court in the case of  Pothula Rama Rao v.


Pendyala Venakata Krishna Rao (2007) 11 SCC 1 and

reference has been made to paragraphs 7 and 8 of


the judgment which read as follows:


      "7.  The   first   respondent   was   the
      official   candidate   of   TDP,   as   he   was
      issued   the   B-Form   by   TDP.   Atchuta
      Ramaiah's          nomination         was         not
      subscribed by 10 proposers but by only
      one   proposer.   The   nomination   of
      Atchuta   Ramaiah   was   rejected   by   the
      Returning   Officer,   not   on   the   ground
      that   he   was   a   "dummy   candidate"   but
      because   his   nomination   was   not
      subscribed   by   ten   voters   of   the
      constituency,   and   thus   there   was   non-
      compliance   with   the   first   proviso   to
      Section   33(1).   The   rejection   is   under
      sub-section (2)(b) of Section 36 which
      provides   for   rejection   of   any
      nomination   on   the   ground   that   there
      has   been   a   failure   to   comply   with
      provision of Section 33 or Section 34.


      8.  If an election petitioner wants to
      put forth a plea that a nomination was
      improperly   rejected,   as   a   ground   for


                             15



       declaring   an   election   to   be   void,   it
       is necessary to set out the averments
       necessary   for   making   out   the   said
       ground.   The   reason   given   by   the
       Returning   Officer   for   rejection   and
       the   facts   necessary   to   show   that   the
       rejection   was   improper,   should   be   set
       out.   If   the   nomination   had   been
       rejected   for   non-compliance   with   the
       first   proviso   to   sub-section   (1)   of
       Section   33,   that   is,   the   candidate's
       nomination not being subscribed by ten
       voters   as   proposers,   the   election
       petition   should   contain   averments   to
       the   effect   that   the   nomination   was
       subscribed   by   ten   proposers   who   were
       electors   of   the   constituency   and
       therefore,   the   nomination   was   valid.
       Alternatively,   the   election   petition
       should aver that the candidate was set
       up by a recognised political party by
       issue   of   a   valid   B-Form   and   that   his
       nomination was signed by an elector of
       the   constituency   as   a   proposer,   and
       that   the   rejection   was   improper   as
       there   was   no   need   for   ten   proposers.
       In   the   absence   of   such   averments,   it
       cannot   be   said   that   the   election
       petition   contains   the   material   facts
       to make out a cause of action."



11. Election   Petitioner   appears   in   person.     She


submits that her nomination paper was subscribed


by ten electors of the Constituency and presented


before the Returning Officer but the same was not


accepted.   We have bestowed our consideration to


the rival submissions.   The Election Petitioner,


                                       16



in the election petition, has stated that she had


"obtained TEN PROPOSERS signatures in Part II of


Annexure   `A'   together   with   their   true   copies   of


their Elector Photo Identity Cards".  Her further


plea in the election petition is that "as per the


given   new   part   number,   when   we   checked   for   the


names of the proposers in the concerned Electoral


Roll, their names were not found".   The relevant


pleadings in this regard are at paragraphs 9, 10


and   11   of   the   election   petition   and   we   deem   it


expedient to reproduce the same as under:


           "9. It is most respectfully submitted
        that   the   petitioner   on   realizing   the
        time   factor   to   submit   the   nomination
        before the 4th  respondent by 1500 hours
        and   since   the   day   being   the   last   day
        for   filing   nomination   papers,   has
        presented               her          nomination           papers
        together   with   all   necessary   enclosures
        before   the   4th  Respondent   with   sole
        intention to comply the requirements of
        new   part   number   and   serial   number   in
        respect of the proposers at the time of
        scrutiny   of   nomination   paper,   which   is
        scheduled   for   next   day   the   24th  April,
        2008   wherein   a   clear   24   hours   time
        would   be   available   before   the
        Petitioner               to          make         good         the
        requirements   in   her   nomination   paper.
        The   petitioner   also   explained   the
        reason   and   the   actual   position
        prevailing   in   the   revenue   office   and
        also   requested   the   4th  respondent   to


                           17



receive   her   nomination   paper   and   allow
time   till   scrutiny   to   comply   the
requirement whatsoever.


10.    It  is  most  respectfully  submitted
that to the petitioners surprise the 4th
respondent   spontaneously   reacted   and
commented   "I   do   not   want   to   listen   to
all your stories and I will not receive
your nomination paper without complying
with the requirement of new part number
and serial number against the proposers
in   Part-II   of   Annexure   `A'   and   if   you
compel me to receive now and tomorrow I
will reject it".  At that point of time
the   petitioner   on   realizing   the
language   of   the   4th  respondent,   his
uncalled   for,   unwarranted   comments,
which   clearly   indicated   pre-determined
ulterior   motive,   has   decided   to   submit
the   nomination   paper   together   with   a
written   representation   addressed   to
Respondent   No.   4,   requesting   him   to
receive   the   petitioners   nomination
papers,   since   true   copies   of   Elector
Photo   Identity   Cards   issued   prior   to
delimitation   duly   self   attested   by   the
respective   proposers   and   true   copy   of
enumeration   details   are   being   enclosed
to   prove   the   identity,   address   and
authenticity   of   the   proposers   beyond
any   doubt.                 The   Representation
handwritten by the Petitioner and typed
copy   is   marked   as   Annexure-`P',   and
requested   him   for   time   till   scrutiny
for   complying   with   the   requirements
whatsoever as per law.


11. It   is   most   respectfully   submitted
that   the   Respondent   No.   4   once   again
reacted  in  the  same  manner  and  bluntly
refused         to         receive         petitioner's
nomination   papers   and   further   adding
insult   to   injury,   he   has   commented   "I


                               18



       will   not   receive   your   nomination   paper
       or   your   representation   or   acknowledge
       any   receipt   and   continued   to   say   "for
       your   negligence   you   cannot   blame   other
       people".     The   petitioner   on   observing
       4th  respondents   illegal   and   improper
       rejection in violation of statutory law
       and   election   commission's   guidelines,
       was left with no option but to presume
       the   existence   of   prejudice   and
       predetermined   ulterior   motive   behind
       the fourth respondents illegal attitude
       and   misuse   of   power.     As   such   the
       petitioner            left         the          premises
       humiliated, insulted by the illegal and
       improper   rejection   of   her   nomination
       paper  by  none  other  than  a  responsible
       neutral         official           like         Returning
       Officer."



12. From a plain reading of these averments it is


evident that the Election Petitioner has averred


that nomination paper was signed by 10 electors.


It was delivered to the Returning Officer with a


request   to   make   available   latest   electoral   roll


of K.R. Pura Constituency for filling up the new


part number and serial number of the proposers in


the   respective   columns.     However,   the   Returning


Officer   stated   that   he   is   not   in   possession


thereof   and   asked   the   Election   Petitioner   to


approach the revenue office located at the ground


floor   for   verifying   and   extracting   the   part


                             19



number   and   serial   number   of   the   proposers.


Attempts   made   on   behalf   of   the   Election


Petitioner to get those details from the revenue


office   were   rendered   futile.   Thereafter,   the


Election   Petitioner   approached   the   Returning


Officer again for delivering the nomination paper


with the explanation. It did not yield any result


and   the   Returning   Officer   stated   that   he   "will


not   receive   your   nomination   paper   without


complying the requirement of new part number and


serial number against the proposers in Part-II of


Annexure `A' and if you compel me to receive now,


tomorrow   I   will   reject   it".     These   averments   at


this   stage   have   to   be   accepted   as   true   and,


therefore, the question is as to whether Election


Petitioner can be said to be a candidate so as to


maintain   the   election   petition   and   further   the


Returning Officer was right in refusing to accept


the nomination paper on the purported ground that


it   did   not   contain   the   serial   number   and   part


number  of the  proposers.    Section 81  of the  Act


inter alia provides for presentation of election


                            20



petition.  It reads as follows:


         "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
         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   relates,
         whether he has voted at such election or
         not.


         1. * * * * *


         [(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. From   a   plain   reading   of   the   aforesaid


provision it is evident that an election petition


calling in question any election can be presented


by any candidate at such election.  Candidate, in


our opinion, would not be only such person whose


nomination form has been accepted for scrutiny or


                             21



whose   name   appears   in   the   list   of   validly


nominated   candidate,   that   is   to   say,   candidates


whose   nominations   have   been   found   valid.     Here,


in   the   present   case,   the   Election   Petitioner's


plea   is   that   the   Returning   Officer   declined   to


accept   the   nomination   paper.     We   are   of   the


opinion that when a nomination paper is presented


it   is   the   bounden   duty   of   the   Returning   Officer


to   receive   the   nomination,   peruse   it,   point   out


the   defects,   if   any,   and   allow   the   candidate   to


rectify the defects and when the defects are not


removed   then   alone   the   question   of   rejection   of


nomination   would   arise.     Any   other   view,   in   our


opinion, will lead to grave consequences and the


Returning   Officers   may   start   refusing   to   accept


the nomination at the threshold which may ensure


victory   to   a   particular   candidate   at   the


election.  This is fraught with danger, difficult


to  fathom.    Section 33(4)  of the  Act casts  duty


on   a   Returning   Officers   to   satisfy   himself   that


the   names   and   the   electoral   roll   numbers   of   the


candidates and their proposers as entered in the


                              22



nomination paper are the same as in the electoral


rolls   and,   therefore,   in   our   opinion,   the


Election   Petitioner   for   the   purpose   of


maintaining an election petition shall be deemed


to be a candidate.


14. As   regards   failure   to   subscribe   the


nomination   papers   by   10   electors   as   required


under the first proviso to Section 33 of the Act,


the   plea   of   the   Election   Petitioner   is   that   it


was   so   subscribed.   Whether   in   fact   was   done   or


not   is   a   matter   of   trial   and   at   this   stage   we


have   to   proceed   on   an   assumption   that   the


averments made in the election petition are true.


There is clear averment in the election petition


that   nomination   paper   was   subscribed   by   10


electors.   In  the face  of aforesaid  there is  no


escape   from   the   conclusion   that   the   Election


Petitioner shall be deemed to be a candidate and


entitled   to   challenge   the   election   of   the


Returned Candidate.



15. Now we revert to the authority of this Court


in   the   case   of  Mithilesh   K.   Sinha   (supra).     In


                             23



the   said   case   election   of   the   President   was


challenged and it was found that the subsequently


delivered   nomination   paper   filed   by   the


petitioner of the said case was not subscribed by


at   least   ten   electors   as   proposers   and   at   least


ten electors as seconders as required by Section


5(B)(1)(a)   of   the   Presidential   and   Vice-


Presidential   Elections   Act,   1952   and   in   that


background   it   was   held   that   he   was   not   a


candidate   competent   to   present   the   petition.


Here, in the present case, as stated earlier, the


Election   Petitioner   has   averred   that              her


nomination   was   subscribed   by   ten   electors   and


that averment at this stage has to be treated as


correct   and,   therefore,   this   distinguishes   the


case   in   hand   from   the   case   of  Mithilesh   K.


Sinha (supra).



16.  In  the case  of  Pothula Rama Rao (supra)  the


Election   Petitioner's   averment   was   that   his


nomination   was   rejected   on   the   untenable   ground


that   he   was   a   dummy   or   substitute   candidate   set


up   by   the   TDP.     However,   there   was   no   averment


                            24



that he was set up as a candidate by TDP in the


manner   contemplated   in   paragraph   13   of   the


Symbols Order, that is, by issuing a valid B-Form


in   his   favour.     Nor   did   the   election   petition


aver that his nomination paper was subscribed by


ten electors.   In the face of it this Court came


to the conclusion that the election petition was


lacking in material facts necessary to make out a


cause  of action.   Here,  in the  present case,  as


stated   earlier,   the   Election   Petitioner   has


clearly   averred   that   his   nomination   was


subscribed   by   ten   electors   and   presented   before


the   Returning   Officer   but   the   same   was   not


received   and   rejected.   Thus   one   of   the   grounds


for declaring the election to be void as provided


under   Section   100(1)(c)   of   the   Act   was


specifically pleaded.  Thus, the decision of this


Court in the case of  Pothula Rama Rao (supra)  in


no way supports the plea of the appellants.


17.  Mr.   Dushyant   Dave,   then   contends   that   the


Election   Petitioner   has   nowhere   averred   that   he


had made the deposit as required under Section 34


                             25



of the Act.  According to him Election Petitioner


shall   not   be   deemed   to   be   duly   nominated   for


election   unless   he   deposits   the   amount   provided


therein.     In   answer   thereto   Election   Petitioner


submits   that   the   deposit   as   contemplated   under


Section 34 of the Act can be made till the time


of   scrutiny   of   the   nomination.   According   to   her


after accepting the nomination it was the bounden


duty   of   the   Returning   Officer   to   point   out   the


requirement   of   deposit   and   enable   the   candidate


to arrange for deposit and it is only thereafter


if the deposit is not made, the nomination can be


rejected.


18. We have considered the rival submissions and


we   find   substance   in   the   submission   of   Mrs.


Mahesh.     We   are   of   the   opinion   that   there   was


still   time   left   for   presenting   the   nomination


paper   and   in   case   the   same   would   have   been


accepted   for   scrutiny,   the   Election   Petitioner


could   had   made   deposit   within   the   time.     It   is


only   after   expiry   of   the   time   had   the   Election


                             26



Petitioner   not   made   the   deposit,   the   nomination


was liable to be rejected.


19. Mr.   Dushyant   Dave,   lastly   submits   that   the


election petition does not contain material facts


and   on   this   ground   alone   the   election   petition


deserves   to   be   rejected   at   the   threshold.


Reliance   has   been   placed   on   a   decision   of   this


Court   in   the   case   of  Anil   Vasudev  Salgaonkar   v.


Naresh   Kushali   Shigaonkar,   (2009)   9   SCC   310  and

our   attention   has   been   drawn   to   paragraph   50   of


the judgment which reads as follows:


          "50.  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   facts   in   the   election
          petition are not complied with."



     Yet   another   decision   on   which   reliance   is


placed is the decision of this Court in the case


of  Ram Sukh v. Dinesh Aggarwal (2009) 10 SCC 541


                                  27



and our attention has been drawn to paragraphs 24


and 25 of the judgment which read as follows:


          "24.  It   needs   little   reiteration   that
          for         the         purpose         of          Section
          100(1)(d)(iv),   it   was   necessary   for   the
          election petitioner to aver specifically
          in   what   manner   the   result   of   the
          election   insofar   as   it   concerned   the
          first respondent was materially affected
          due to the said omission on the part of
          the   Returning   Officer.   Unfortunately,
          such averment is missing in the election
          petition.


          25.  In   our   judgment,   therefore,   the
          Election           Tribunal/High             Court         was
          justified   in   coming   to   the   conclusion
          that   statement   of   material   facts   in   the
          election petition was completely lacking
          and   the   petition   was   liable   to   be
          rejected   at   the   threshold   on   that
          ground.   We   have,   therefore,   no
          hesitation   in   upholding   the   view   taken
          by   the   High   Court.   Consequently,   this
          appeal, being devoid of any merit, fails
          and   is   dismissed   accordingly.   Since   the
          first   respondent   remained   unrepresented,
          there will be no order as to costs."



20. Mrs.   Mahesh   has   taken   us   through   the


averments made in the election petition including


the   paragraphs   which   we   have   reproduced   in   the


preceding   paragraphs   of   this   judgment   and


contends that the election petition does contain


a   concise   statement   of   material   facts   on   which


                             28



she had relied seeking the relief of declaration


of   the   election   of   the   Returned   Candidate   to   be


void.



21. We   have   considered   the   submission   and   the


submission   advanced   by   Mrs.   Mahesh   commend   us.


It is trite that if an Election Petitioner wants


to   put   forth   a   plea   that   a   nomination   was


improperly rejected to declare an election to be


void it is necessary to set out the averments for


making out the said ground.   The reason given by


the   Returning   Officer   for   refusal   to   accept   the


nomination   and   the   facts   necessary   to   show   that


the   refusal   was   improper   is   required   to   be   set


out in the election petition.   In the absence of


the   necessary   averments   it   cannot   be   said   that


the election petition contains the material facts


to   make   out   a   cause   of   action.   Section   83(1)(a)


inter   alia   provides   that   an   election   petition


shall contain a concise statement of the material


facts.     Further,   Section   87   of   the   Act   provides


that subject to the provisions of the Act and the


Rules   framed   thereunder   every   election   petition


                              29



shall   be   tried   in   accordance   with   the   procedure


applicable   under   the   Code   of   Civil   Procedure   to


the   trial   of   suits.     Order   VI   of   the   Code   of


Civil   Procedure   is   devoted   to   the   pleadings


generally   and   Rule   2(i)   thereof,   inter   alia,


provides   that   every   pleading   shall   contain


statement   in   a   concise   form   all   the   material


facts   on   which   the   party   pleading   relies   for


claim.     In   an   election   petition,   which   does   not


contain material facts, no relief can be granted.


The   phrase   `material   fact'   as   used   in   Section


83(1)(a)   of   the   Act   or   Order   VI   Rule   2   of   the


Code of Civil Procedure   has not been defined in


the Act or the Code of Civil Procedure.   In our


opinion all specific and primary facts which are


required  to be  proved by  a party  for the  relief


claimed are material facts.   It is settled legal


position that all material facts must be pleaded


by the party on which the relief is founded. Its


object   and   purpose   is   to   enable   the   contesting


party to know the case which it has to meet.  An


election   petition   can   be   summarily   dismissed   if


                             30



it   does   not   furnish   the   material   facts   to   give


rise to a cause of action.  However, what are the


material   facts   always   depend   upon   the   facts   of


each case and no rule of universal application is


possible to be laid down in this regard.



22. Bearing in mind the aforesaid legal position


when   we   proceed   to   consider   the   facts   of   the


present   case   we   are   of   the   opinion   that   the


Election   Petitioner   had   disclosed   material   facts


and the matter is fit to go for trial.   Whether


those   material   facts   are   true   or   false   is   a


matter of trial.   As regards authorities of this


Court   in   the   case   of  Anil   Vasudev   Salgaonkar


(supra)   and   Ram   Sukh   (supra)  we   are   of   the

opinion that the same do not lend support to the


contention   of   the   appellant.     In   both   the   cases


this   Court   on   fact   came   to   the   conclusion   that


the   election   petition   did   not   contain   statement


of   material   facts   and   accordingly   the   election


petitions   were   dismissed   at   the   threshold.


However,   in   the   present   case,   on   facts   we   have


found   that   the   election   petition   does   contain


                             31



material   facts   and   it   is   not   liable   to   be


dismissed at the threshold.



23. Any   observation   made   by   us   in   this   judgment


is   for   the   purpose   of   disposal   of   these   appeals


and   shall   have   no   bearing   at   the   final   decision


of the election petition.



24. Accordingly, we dismiss both the appeals with


costs of Rs.25,000/- to be paid by the appellant


to the respondent.  





                                       ..................J
                                       (HARJIT SINGH BEDI)



                                   ......................J
                             (CHANDRAMAULI KR. PRASAD)


New Delhi,
July 8, 2011.