Or. 7, rule 11(a) C.P.C. - Election petition - Trial court dismissed the Election petition in limini as the sole ground claimed is only that the respondent is disqualified under Article 191(1)(a) of the Constitution of India, since he was holding the post of Chairperson of the Kerala State Wakf Board.- Apex court held that we are of the view that the election petition having disclosed a cause of action, it should not have been thrown out at the threshold. The impugned order and judgment are hence set aside. The appeals are allowed. The election petition is remitted to the High Court for trial in accordance with law. =
whether the
averments in the election petition disclose a cause of action as required
under Order VII Rule 11(a) of the Code of Civil Procedure, 1908
(hereinafter referred to as ‘CPC’).
Incidentally, it may be noted that the
election petition has been dismissed by the impugned judgment dated
16.11.2011, which reads as follows:
“J U D G M E N T
I.A. 4/11 is allowed. Election petition is dismissed in limine as it does
not disclose a complete cause of action or a triable issue.”
Of course, detailed reasons are given in the order dated 16.11.2011 in I.A.
4/2011, which is also under challenge in one of the appeals.
The sole ground in the election petition is that the respondent is
disqualified under Article 191(1)(a) of the Constitution of India, since he
was holding the post of Chairperson of the Kerala State Wakf Board. To the
extent relevant, the Article reads as follows:
“191. Disqualification for membership.-
(1) xxx
(a) if he holds office of profit under the Government of India or the
Government of any State specified in the First Schedule, other than an
office declared by the Legislature of the State by law not to disqualify
its holder;” =
In Mayar (H.K.) Ltd. v. Owners & Parties, Vessel M.V. Fortune Express[12],
this Court at Paragraph-12 held that:
“12. … The court has to read the entire plaint as a whole to find out
whether it discloses a cause of action and if it does, then the plaint
cannot be rejected by the court exercising the powers under Order 7 Rule 11
of the Code. Essentially, whether the plaint discloses a cause of action,
is a question of fact which has to be gathered on the basis of the
averments made in the plaint in its entirety taking those averments to be
correct. A cause of action is a bundle of facts which are required to be
proved for obtaining relief and for the said purpose, the material facts
are required to be stated but not the evidence except in certain cases
where the pleadings relied on are in regard to misrepresentation, fraud,
wilful default, undue influence or of the same nature. So long as the
plaint discloses some cause of action which requires determination by the
court, the mere fact that in the opinion of the Judge the plaintiff may not
succeed cannot be a ground for rejection of the plaint.”
In a recent decision in Ponnala Lakshmaiah v. Kommuri Pratap Reddy and
others[13], this Court had held at Paragraphs-17 and 29 that:
“17. … The courts need to be cautious in dealing with requests for
dismissal of the petitions at the threshold and exercise their powers of
dismissal only in cases where even on a plain reading of the petition no
cause of action is disclosed.”
(Emphasis supplied)
xxx xxx xxx
“29. … An election which is vitiated by reason of corrupt practices,
illegalities and irregularities enumerated in Sections 100 and 123 of the
Act cannot obviously be recognised and respected as the decision of the
majority of the electorate. The courts are, therefore, duty-bound to
examine the allegations whenever the same are raised within the framework
of the statute without being unduly hypertechnical in their approach and
without being oblivious of the ground realities.”
Finally, as cautioned by this Court in Raj Narain v. Indira Nehru Gandhi
and another [14], it was held that:
“19. Rules of pleadings are intended as aids for a fair trial and for
reaching a just decision. An action at law should not be equated to a game
of chess. Provisions of law are not mere formulae to be observed as
rituals. Beneath the words of a provision of law, generally speaking, there
lies a juristic principle. It is the duty of the court to ascertain that
principle and implement it. …”
(Emphasis supplied)
Guided by the settled principles of law referred to above, we are of the
view that the election petition having disclosed a cause of action, it
should not have been thrown out at the threshold. The impugned order and
judgment are hence set aside. The appeals are allowed. The election
petition is remitted to the High Court for trial in accordance with law.
There is no order as to costs.
IN THE SUPREME COURT OF INDIA
CIVIL APPELLATE JURISDICTION
CIVIL APPEAL NOS. 69-70 OF 2012
Ashraf Kokkur … Appellant (s)
Versus
K.V. Abdul Khader Etc. … Respondent (s)
J U D G M E N T
KURIAN, J.:
The simple question arising for consideration in this case is whether the
averments in the election petition disclose a cause of action as required
under Order VII Rule 11(a) of the Code of Civil Procedure, 1908
(hereinafter referred to as ‘CPC’). Incidentally, it may be noted that the
election petition has been dismissed by the impugned judgment dated
16.11.2011, which reads as follows:
“J U D G M E N T
I.A. 4/11 is allowed. Election petition is dismissed in limine as it does
not disclose a complete cause of action or a triable issue.”
Of course, detailed reasons are given in the order dated 16.11.2011 in I.A.
4/2011, which is also under challenge in one of the appeals.
The sole ground in the election petition is that the respondent is
disqualified under Article 191(1)(a) of the Constitution of India, since he
was holding the post of Chairperson of the Kerala State Wakf Board. To the
extent relevant, the Article reads as follows:
“191. Disqualification for membership.-(1) xxx
(a) if he holds office of profit under the Government of India or the
Government of any State specified in the First Schedule, other than an
office declared by the Legislature of the State by law not to disqualify
its holder;”
(Emphasis supplied)
The High Court has taken the view that the election petition does not
clearly contain a pleading that the respondent holds an office of profit
under the State Government. The pleading is only to the effect that the
respondent holds an office of profit.
Therefore, the only inquiry that is required in this case is to see on
reading the election petition as a whole, whether the petitioner has
disclosed a cause of action.
UNDISPUTED FACTS
The respondent was the Chairperson of the Kerala State Wakf Board when he
contested the election to the Kerala Legislative Assembly. The petitioner
in fact objected to his nomination, as per Annexure P1(d) (Annexure-D). The
objection, to the extent relevant, reads as follows:
“Mr. Abdul Kader is candidate for Guruvayoor Constituency. He is Chairman
of Kerala State Wakf Board. He is holding an office of profit under
Government of Kerala and hence disqualified.”
(Emphasis supplied)
However, as per order dated 29.03.2011, the objection was overruled
holding that the petitioner failed to prove beyond doubt as to whether the
elected office bearers of the Wakf Board would come under the purview of
the office of profit as stated under Article 191 of the Constitution of
India [Annexure-P1(c)-(Annexure-C)].
PLEADINGS IN THE ELECTION PETITION
To see whether the facts pleaded in the election petition constitute a
cause of action, we shall extract the relevant ones, with emphasis
supplied. At Paragraph-3 of the election petition, it is stated as follows:
“3. The petitioner respectfully submits that on the date of election, the
first respondent was disqualified to contest the election as he was
admittedly on that day holding an office of profit, namely the Chairperson
of the Kerala State Wakf Board. In terms of Section 14(9) of the Wakf Act
(Central Act 43) of 1995, the Chairperson of the State Wakf Board, which is
constituted by the State Government, namely the first respondent was
appointed as Chairman of the Kerala State Wakf Board on 29th December,
2008. ….”
xxx xxx xxx
“The Chairperson of the State Wakf Board is performing public duties
particularly of statutory nature under the Wakf Act 1995. He exercises even
Quasi Judicial and supervisory powers. He receives such remuneration as are
provided for and prescribed by the Government of Kerala. …”
Paragraph-4 of the election petition to the extent relevant, reads as
follows:
“4. Article 191 of the Constitution of India to the extent relevant reads
as follows:-
“191. Disqualification of membership.-(1) A person shall be disqualified
for being chosen as, and for being, a member of the Legislative Assembly or
Legislative Council of a State-
(a) if he holds any office of profit under the Government of India or the
Government of any State specified in the First Schedule, other than an
office declared by the Legislature of the State by law not to disqualify
its holder;
(b) if he is of unsound mind and stands so declared by a competent court;
(c) if he is an undischarged insolvent;
(d) if he is not a citizen of India, or has voluntarily acquired the
citizenship of a foreign State, or is under any acknowledgement of
allegiance or adherence to a foreign State;
(e) if he is so disqualified by or under any law made by Parliament.
(Explanation.-For the purposes of this clause, a person shall not be deemed
to hold an office of profit under the Government of India or the Government
of any State specified in the First Schedule by reason only that he is a
Minister either for the Union or for such State.
(2) A person shall be disqualified for being a member of the Legislative
Assembly or Legislative Council of a State if he is so disqualified under
the Tenth Schedule).”
Paragraph-5 of the election petition refers to the objection before the
Returning Officer and the order passed thereof, which we have already
referred to above.
Paragraph-6 of the election petition reads as follows:
“6. The petitioner respectfully submits that in terms of the principles
evolved by the Apex Court, the first Respondent falls within the expression
‘holder of an office of profit’ in view of the following admitted facts,
among other tests.
(1) He was appointed by the State of Kerala, from members of a
statutorily constituted body.
(2) He is removable by the State Government.
(3) The resignation tendered by him has to be accepted and a successor
appointed and said appointment should be duly notified in the Gazette,
which was not done.
(4) The first Respondent has been admittedly granted honorarium,
allowances and enjoying the facility of a car at State expenses and drawing
other pecuniary advantages.
(5) The office held by him is a public office.
(6) There is a degree of control by and dependence on government and
governmental functions are performed.
Besides, paying the remuneration the functions performed by the first
Respondent, the holder of an office of profit, are carried on by him from
the Government with an effective Governmental control over his duties and
functions. Undoubtedly from the office that he holds the first Respondent
is deriving pecuniary gains and the office he holds is that of a permanent
nature.”
At Paragraph-7 of the election petition, it is pleaded as follows:
“7. The first Respondent has been granted the facility of a car driver
whose salary and other allowances are paid also from the funds of the
Government of Kerala. This also goes to point out that the office that he
holds is that of an ‘office of profit’. …”
At Paragraph-10 of the election petition, it is averred as follows:
“10. Since, admittedly on the date of the election, the first Respondent
was holding an office of profit as Chairperson of the Kerala State Wakf
Board, he was disqualified to contest the elections. …”
Ground-A of the election petition, to the extent relevant, reads as
follows:
“A. Admittedly on the date of the election, the returned candidate, the
first Respondent was disqualified to contest the elections under Section
100 (1) (a) in that he was holding an office of profit as contemplated
under Article 191 of the Constitution of India, the Chairperson of the Wakf
Board. Admittedly the first Respondent was appointed by the State of
Kerala. Concededly he was entitled to and was drawing financial perquisites
and allowances and enjoying pecuniary benefit from the State as Chairperson
of the State Wakf Board. He therefore, was holding an office of profit
which is a disqualification as contemplated under Article 191 of the
Constitution of India and even now he is continuing as such in the
position. Thus, the first respondent was wholly disqualified to contest the
elections to the Kerala State Legislative Assembly. …”
THE REPRESENTATION OF THE PEOPLE ACT, 1951
Section 83 of The Representation of the People Act, 1951 (hereinafter
referred to as ‘the RP Act’), reads as follows:
“ 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.]”
(Emphasis supplied)
The requirement under Section 83(1)(a) of the RP Act in contradistinction
to Section 81(b) of the RP Act is that the election petition need contain
only a concise statement of the material facts and not material
particulars. ‘Concise’ according to Oxford Dictionary means, ‘brief and
comprehensive’. Concise Oxford Dictionary has given the meaning to the
expression ‘Concise’ as ‘giving a lot of information clearly and in few
words’. As per Webster Comprehensive Dictionary, International Edition,
expression has been defined as ‘expressing much in brief form’. Having
furnished the facts in a compendious manner, can it be said that there is
no concise statement of material facts?
Holding an office of profit under the Government of India or Government of
any State is the disqualification. Whether that ground is discernible if
the election petition is read as a whole, is the simple exercise to be
undertaken by the High Court, when called upon to do so under Order VII
Rule 11(a) of CPC. At Paragraph-3 of the election petition, it is contended
that the respondent was holding an office of profit, viz., the Chairperson
of the Kerala State Wakf Board. Again, in the same paragraph, it is stated
that the Chairperson of the State Wakf Board receives such remuneration as
are provided for and prescribed by the Government of Kerala. After quoting
Article 191 of the Constitution, it is pleaded that any person who holds an
office of profit under the State Government, is debarred from contesting
the elections to the Legislative Assembly. It is again pleaded that the
State of Kerala having not made any legislation on removal of
disqualification of the Chairperson of the Wakf Board, the Chairperson of
the Kerala State Wakf Board is disqualified under Article 191 of the
Constitution. At Paragraph-6, enumerating the particulars, it is pleaded
that he was holding an office of profit in having been granted honorarium,
allowances and enjoying the facility of a car at State expenses and drawing
other pecuniary advantages. Again, under Paragraph-7, it is stated that the
first respondent was provided with chauffeur whose salary and allowances
are paid also from the funds of the Government of Kerala. At Paragraph-10,
it is clearly stated that “since admittedly on the date of the election,
the first Respondent was holding an office of profit as Chairperson of the
Kerala State Wakf Board, he was disqualified to contest the election”. In
Ground-A in the election petition, it is reiterated that the first
respondent suffered from the disqualification under Article 191 of the
Constitution of India since he was holding an office of profit as
Chairperson of the Wakf Board and that he was entitled and drawing
financial perquisites and allowances and pecuniary benefits from the State
of Kerala as Chairperson of the Kerala State Wakf Board and, hence, he was
holding an office of profit which was a disqualification under Article 191
of the Constitution of India. Thus, he was disqualified to contest the
election to the Kerala State Legislative Assembly. These averments, to us,
clearly disclose a cause of action, viz., the respondent was holding the
position as Chairperson of the Kerala State Wakf Board and deriving
financial benefits from the Kerala Government is disqualified under Article
191(1)(a) of the Constitution of India, as holding of an office of profit
under the State Government of Kerala. That is the triable issue in the
election petition.
The question whether a schedule or annexures to the election petition is an
integral part of the election petition was first discussed by this Court in
Sahodrabai Rai v. Ram Singh Aharwar[1]. It was held that a schedule or an
annexure which is merely an evidence in the case and included only for the
sake of adding strength to the petitioner, does not form an integral part
of the election petition. It was a case where the annexures were not
verified by the election petitioner as required under Section 83(2) of the
RP Act.
The question raised in Sahodrabai Rai case (supra) was:
“Whether the election petition is liable to be dismissed for contravention
of Section 81(3)[2] of The Representation of the People Act, 1951 as copy
of Annexure-A to the petition was not given along with the petition for
being served on the respondents.”
The issue was again considered by this Court in M. Kamalam v. Dr. V.A. Syed
Mohammed[3]. Paragraph-5 of the said judgment reads as follows:
“5. Now, the first question which arises is as to what constitutes an
election petition for the purpose of Section 81 sub-section (3). Is it
confined only to election petition proper or does it also include a
schedule or annexure contemplated in sub-section (2) of Section 83 or a
supporting affidavit referred to in the proviso to Section 83 sub-section
(1)? To answer this question, we must turn to Section 83 which deals with
contents of an election petition. Sub-section (1) of that section sets out
what an election petition shall contain [pic]and provides that it shall be
signed by the petitioner and verified in the manner laid down in the Code
of Civil Procedure, 1908 for the verification of pleadings. The proviso
requires that where the petitioner alleges any corrupt practice, the
election 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. The context in which the proviso occurs clearly
suggests that the affidavit is intended to be regarded as part of the
election petition. Otherwise, it need not have been introduced in a section
dealing with contents of an election petition nor figured as a proviso to a
sub-section which lays down what shall be the contents of an election
petition. Sub-section (2) also by analogy supports this inference. It
provides that any schedule or annexure to an election petition shall be
signed by the petitioner and verified in the same manner as an election
petition. It is now established by the decision of this Court in Sahodrabai
Rai v. Ram Singh Aharwar that sub-section (2) applies only to a schedule or
annexure which is an integral part of the election petition and not to a
schedule or annexure which is merely evidence in the case but which is
annexed to the election petition merely for the sake of adding strength to
it. The scope and ambit of sub-section (2) was explained in the following
words by Hidayatullah, J., speaking on behalf of the Court in Sahodrabai
case at pp. 19-20:
“We are quite clear that sub-section (2) of Section 83 has reference not to
a document which is produced as evidence of the averments of the election
petition but to averments of the election petition which are put, not in
the election petition but in the accompanying schedules or annexures. We
can give quite a number of examples from which it would be apparent that
many of the averments of the election petition are capable of being put as
schedules or annexures. For example, the details of the corrupt practice
there in the former days used to be set out separately in the schedules and
which may, in some cases, be so done even after the amendment of the
present law. Similarly, details of the averments too compendious for being
included in the election petition may be set out in the schedules or
annexures to the election petition. The law then requires that even though
they are outside the election petition, they must be signed and verified,
but such annexures or schedules are then treated as integrated with the
election petition and copies of them must be served on the respondent if
the requirement regarding service of the election petition is to be wholly
complied with. But what we have said here does not apply to documents which
are merely evidence in the case but which for reasons of clarity and to
lend force to the petition are not kept back but produced or filed with the
election petitions. They are in no sense an integral part of the averments
of the petition but are only evidence of those averments and in proof
thereof.”
It would, therefore, be seen that if a schedule or annexure is an integral
part of the election petition, it must be signed by the petitioner and
verified, since [pic]it forms part of the election petition. The subject-
matter of sub-section (2) is thus a schedule or annexure forming part of
the election petition and hence it is placed in Section 83 which deals with
contents of an election petition. …”
(Emphasis supplied)
All the annexures attached to the election petition in the present case
have been signed and verified by the election petitioner as per the
requirement under Section 83(2) of the RP Act, as can be seen from Annexure-
P1(Colly). Therefore, Annexure-P1(d) to the election petition (Annexure-D
herein) forms an integral part of the election petition. There is a clear
and unambiguous plea that the respondent was holding the post of Kerala
State Wakf Board, holding an office of profit under the Government of
Kerala and, hence, he was disqualified.
Annexure-D is referred at Paragraph-5 of the election petition, which reads
as follows:
“5. Even so, the first Respondent submitted his nomination before the
Returning Officer in the said Constituency. Objection was taken that the
first Respondent was disqualified to be chosen to fill the seat under the
Constitution of India. But the same was rejected by the Returning Officer
without any application of Mind. A copy of the order is produced herewith
and marked as Annexure C, the date shown therein has been corrected as
29.3.2011, while its English translation is produced herewith and marked as
Annexure C1 and the objection submitted by the petitioner with the
forwarding letter is produced and marked as Annexure D.”
Recently, a three-Judge Bench of this Court in G.M. Siddeshwar v. Prasanna
Kumar[4] (Judgment is authored by one of us, Lokur, J.), had an occasion to
refer to this issue. Referring to Sahodrabai Rai case (supra), it was held
at Paragraphs-54 to 56 as follows:
“54. In Sahodrabai Rai v. Ram Singh Aharwar[5] the question raised was as
follows: (AIR p. 1080, para 3)
“3. … ‘Whether the election petition is liable to be dismissed for
contravention of Section 81(3) of the Representation of the People Act,
1951 as copy of Annexure A to the petition was not given along with the
petition for being served on the respondents.’”
55. It was noted that the contents of the pamphlet, in translation, were
incorporated in the election petition. It was also noted that the trial of
an election petition has to follow, as far as may be, the provisions of
CPC. Therefore, this Court approached the problem by looking at CPC to
ascertain what would have been the case if what was under consideration was
a suit and not the trial of an election petition.
56. It was held that where the averments are too compendious for being
included in an election petition, they may be set out in the schedules or
annexures to the election petition. In such an event, these schedules or
annexures would be an integral part of the election petition and must,
therefore, be served on the respondents. This is quite distinct from
documents which may be annexed to the election petition by way of evidence
and so do not form an integral part of the averments of the election
petition and may not, therefore, be served on the respondents.”
Further, at Paragraph-57, there is also reference to
M. Kamalam case (supra) and it is held as follows:
“57. In M. Kamalam v. V.A. Syed Mohammed this Court followed Sahodrabai Rai
and held that a schedule or an annexure which is an integral part of an
election petition must comply with the provisions of Section 83(2) of the
Act. Similarly, the affidavit referred to in the proviso to Section 83(1)
of the Act where the election petition alleges corrupt practices by the
returned candidate also forms a part of the election petition. If the
affidavit, at the end of the election petition is attested as a true copy,
then there is sufficient compliance with the requirement of Section 81(3)
of the Act and would tantamount to attesting the election petition itself.”
The pleadings, if taken as a whole, would clearly show that they constitute
the material facts so as to pose a triable issue as to whether the first
respondent is disqualified to contest election to the Kerala State
Legislative Assembly while holding an office of profit under the State
government as Chairperson of the Kerala State Wakf Board.
The question is not whether the Chairperson of the Kerala State Wakf Board
is an office of profit or not. That is the issue to be tried. Question is
whether the petitioner has raised such a question in the election petition.
The disqualification under the Constitution of India being, holding an
office of profit under the State Government. Petitioner has furnished all
the material particulars in that regard. Therefore, the petition discloses
a cause of action.
After all, the inquiry under Order VII Rule 11(a) of CPC is only as to
whether the facts as pleaded disclose a cause of action and not complete
cause of action. The limited inquiry is only to see whether the petition
should be thrown out at the threshold. In an election petition, the
requirement under Section 83 of the RP Act is to provide a precise and
concise statement of material facts. The expression ‘material facts’
plainly means facts pertaining to the subject matter and which are relied
on by the election petitioner. If the party does not prove those facts, he
fails at the trial (see Philipps v. Philipps and others[6] ; Mohan Rawale
v. Damodar Tatyaba alias Dadasaheb and others[7]).
This Court in Azhar Hussain v. Rajiv Gandhi[8], at
Paragraph-11, has held that:
“11. … Whether in an election petition a particular fact is material or not
and as such required to be pleaded is dependent on the nature of the charge
levelled and the circumstances of the case. …”
The charge levelled is that the respondent holds an office of profit
as the Chairperson of the Kerala State Wakf Board and in that capacity he
enjoys the profits attached to that office from the Government of Kerala.
In V.S. Achuthanandan v. P.J. Francis and another[9] , a
three-Judge Bench of this Court has taken the view that only because full
particulars are not given, an election petitioner is not to be thrown out
at the threshold. To quote Paragraph-15:
“15. … An election petition was not liable to be dismissed in limine merely
because full particulars of corrupt practice alleged were not set out. It
is, therefore, evident that material facts are such primary facts which
must be proved at the trial by a party to establish existence of a cause of
action. Whether in an election petition a particular fact is a material
fact or not, and as such, required to be pleaded is a question which
depends on the nature of the charge levelled, the ground relied upon, and
in the light of the special circumstances of the case. ..”
Again at Paragraph-16 of V.S. Achuthanandan case (supra), it was held
that:
“16. … So long as the claim discloses some cause of action or raises some
questions fit to be decided by a Judge, the mere fact that the case is weak
and not likely to succeed is no ground for striking it out. The
implications of the liability of the pleadings to be struck out on the
ground that it discloses no reasonable cause of action are generally more
known than clearly understood. …”
xxx xxx xxx
“… the failure of the pleadings to disclose a reasonable cause of action is
distinct from the absence of full particulars. …”
(Emphasis supplied)
In Hari Shanker Jain v. Sonia Gandhi[10] , a three-Judge Bench of this
Court held that the expression ‘cause of action’ would mean facts to be
proved, if traversed, in order to support his right to the judgment of the
court and that the function of the party is to present a full picture of
the cause of action with such further information so as to make opposite
party understand the case he will have to meet. To quote Paragraph-23:
“23. … 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, Jitendra Bahadur Singh
v. Krishna Behari.) 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 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.”
In Syed Dastagir v. T.R. Gopalakrishna Setty[11], while referring to the
pleadings, it has been held at Paragraph-9 that:
“9. … In construing a plea in any pleading, courts must keep in mind that a
plea is not an expression of art and science but an expression through
words to place fact and law of one’s case for a relief. Such an expression
may be pointed, precise, sometimes vague but still it could be gathered
what he wants to convey through only by reading the whole pleading,
depending on the person drafting a plea. …”
“ … So to insist for a mechanical production of the exact words of a
statute is to insist for the form rather than the essence. So the absence
of form cannot dissolve an essence if already pleaded.”
In Mayar (H.K.) Ltd. v. Owners & Parties, Vessel M.V. Fortune Express[12],
this Court at Paragraph-12 held that:
“12. … The court has to read the entire plaint as a whole to find out
whether it discloses a cause of action and if it does, then the plaint
cannot be rejected by the court exercising the powers under Order 7 Rule 11
of the Code. Essentially, whether the plaint discloses a cause of action,
is a question of fact which has to be gathered on the basis of the
averments made in the plaint in its entirety taking those averments to be
correct. A cause of action is a bundle of facts which are required to be
proved for obtaining relief and for the said purpose, the material facts
are required to be stated but not the evidence except in certain cases
where the pleadings relied on are in regard to misrepresentation, fraud,
wilful default, undue influence or of the same nature. So long as the
plaint discloses some cause of action which requires determination by the
court, the mere fact that in the opinion of the Judge the plaintiff may not
succeed cannot be a ground for rejection of the plaint.”
In a recent decision in Ponnala Lakshmaiah v. Kommuri Pratap Reddy and
others[13], this Court had held at Paragraphs-17 and 29 that:
“17. … The courts need to be cautious in dealing with requests for
dismissal of the petitions at the threshold and exercise their powers of
dismissal only in cases where even on a plain reading of the petition no
cause of action is disclosed.”
(Emphasis supplied)
xxx xxx xxx
“29. … An election which is vitiated by reason of corrupt practices,
illegalities and irregularities enumerated in Sections 100 and 123 of the
Act cannot obviously be recognised and respected as the decision of the
majority of the electorate. The courts are, therefore, duty-bound to
examine the allegations whenever the same are raised within the framework
of the statute without being unduly hypertechnical in their approach and
without being oblivious of the ground realities.”
Finally, as cautioned by this Court in Raj Narain v. Indira Nehru Gandhi
and another [14], it was held that:
“19. Rules of pleadings are intended as aids for a fair trial and for
reaching a just decision. An action at law should not be equated to a game
of chess. Provisions of law are not mere formulae to be observed as
rituals. Beneath the words of a provision of law, generally speaking, there
lies a juristic principle. It is the duty of the court to ascertain that
principle and implement it. …”
(Emphasis supplied)
Guided by the settled principles of law referred to above, we are of the
view that the election petition having disclosed a cause of action, it
should not have been thrown out at the threshold. The impugned order and
judgment are hence set aside. The appeals are allowed. The election
petition is remitted to the High Court for trial in accordance with law.
There is no order as to costs.
....………………….....…J.
(MADAN B. LOKUR)
…......……………………J.
(KURIAN JOSEPH)
New Delhi;
August 29, 2014.
-----------------------
[1] AIR 1968 SC 1079
[2] 81. Presentation of petitions.— xxx (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.
[3] (1978)2 SCC 659
[4] (2013) 4 SCC 776
[5] AIR 1968 SC 1079
[6] (1878) 4 QBD 127, 133
[7] (1994) 2 SCC 392, 399
[8] 1986 Supp SCC 315
[9] (1999) 3 SCC 737
[10] (2001) 8 SCC 233
[11] (1999) 6 SCC 337
[12] (2006) 3 SCC 100
[13] (2012) 7 SCC 788
[14] (1972) 3 SCC 850
-----------------------
REPORTABLE
-----------------------
23
whether the
averments in the election petition disclose a cause of action as required
under Order VII Rule 11(a) of the Code of Civil Procedure, 1908
(hereinafter referred to as ‘CPC’).
Incidentally, it may be noted that the
election petition has been dismissed by the impugned judgment dated
16.11.2011, which reads as follows:
“J U D G M E N T
I.A. 4/11 is allowed. Election petition is dismissed in limine as it does
not disclose a complete cause of action or a triable issue.”
Of course, detailed reasons are given in the order dated 16.11.2011 in I.A.
4/2011, which is also under challenge in one of the appeals.
The sole ground in the election petition is that the respondent is
disqualified under Article 191(1)(a) of the Constitution of India, since he
was holding the post of Chairperson of the Kerala State Wakf Board. To the
extent relevant, the Article reads as follows:
“191. Disqualification for membership.-
(1) xxx
(a) if he holds office of profit under the Government of India or the
Government of any State specified in the First Schedule, other than an
office declared by the Legislature of the State by law not to disqualify
its holder;” =
In Mayar (H.K.) Ltd. v. Owners & Parties, Vessel M.V. Fortune Express[12],
this Court at Paragraph-12 held that:
“12. … The court has to read the entire plaint as a whole to find out
whether it discloses a cause of action and if it does, then the plaint
cannot be rejected by the court exercising the powers under Order 7 Rule 11
of the Code. Essentially, whether the plaint discloses a cause of action,
is a question of fact which has to be gathered on the basis of the
averments made in the plaint in its entirety taking those averments to be
correct. A cause of action is a bundle of facts which are required to be
proved for obtaining relief and for the said purpose, the material facts
are required to be stated but not the evidence except in certain cases
where the pleadings relied on are in regard to misrepresentation, fraud,
wilful default, undue influence or of the same nature. So long as the
plaint discloses some cause of action which requires determination by the
court, the mere fact that in the opinion of the Judge the plaintiff may not
succeed cannot be a ground for rejection of the plaint.”
In a recent decision in Ponnala Lakshmaiah v. Kommuri Pratap Reddy and
others[13], this Court had held at Paragraphs-17 and 29 that:
“17. … The courts need to be cautious in dealing with requests for
dismissal of the petitions at the threshold and exercise their powers of
dismissal only in cases where even on a plain reading of the petition no
cause of action is disclosed.”
(Emphasis supplied)
xxx xxx xxx
“29. … An election which is vitiated by reason of corrupt practices,
illegalities and irregularities enumerated in Sections 100 and 123 of the
Act cannot obviously be recognised and respected as the decision of the
majority of the electorate. The courts are, therefore, duty-bound to
examine the allegations whenever the same are raised within the framework
of the statute without being unduly hypertechnical in their approach and
without being oblivious of the ground realities.”
Finally, as cautioned by this Court in Raj Narain v. Indira Nehru Gandhi
and another [14], it was held that:
“19. Rules of pleadings are intended as aids for a fair trial and for
reaching a just decision. An action at law should not be equated to a game
of chess. Provisions of law are not mere formulae to be observed as
rituals. Beneath the words of a provision of law, generally speaking, there
lies a juristic principle. It is the duty of the court to ascertain that
principle and implement it. …”
(Emphasis supplied)
Guided by the settled principles of law referred to above, we are of the
view that the election petition having disclosed a cause of action, it
should not have been thrown out at the threshold. The impugned order and
judgment are hence set aside. The appeals are allowed. The election
petition is remitted to the High Court for trial in accordance with law.
There is no order as to costs.
2014 - Aug. Part - http://judis.nic.in/supremecourt/filename=41853
IN THE SUPREME COURT OF INDIA
CIVIL APPELLATE JURISDICTION
CIVIL APPEAL NOS. 69-70 OF 2012
Ashraf Kokkur … Appellant (s)
Versus
K.V. Abdul Khader Etc. … Respondent (s)
J U D G M E N T
KURIAN, J.:
The simple question arising for consideration in this case is whether the
averments in the election petition disclose a cause of action as required
under Order VII Rule 11(a) of the Code of Civil Procedure, 1908
(hereinafter referred to as ‘CPC’). Incidentally, it may be noted that the
election petition has been dismissed by the impugned judgment dated
16.11.2011, which reads as follows:
“J U D G M E N T
I.A. 4/11 is allowed. Election petition is dismissed in limine as it does
not disclose a complete cause of action or a triable issue.”
Of course, detailed reasons are given in the order dated 16.11.2011 in I.A.
4/2011, which is also under challenge in one of the appeals.
The sole ground in the election petition is that the respondent is
disqualified under Article 191(1)(a) of the Constitution of India, since he
was holding the post of Chairperson of the Kerala State Wakf Board. To the
extent relevant, the Article reads as follows:
“191. Disqualification for membership.-(1) xxx
(a) if he holds office of profit under the Government of India or the
Government of any State specified in the First Schedule, other than an
office declared by the Legislature of the State by law not to disqualify
its holder;”
(Emphasis supplied)
The High Court has taken the view that the election petition does not
clearly contain a pleading that the respondent holds an office of profit
under the State Government. The pleading is only to the effect that the
respondent holds an office of profit.
Therefore, the only inquiry that is required in this case is to see on
reading the election petition as a whole, whether the petitioner has
disclosed a cause of action.
UNDISPUTED FACTS
The respondent was the Chairperson of the Kerala State Wakf Board when he
contested the election to the Kerala Legislative Assembly. The petitioner
in fact objected to his nomination, as per Annexure P1(d) (Annexure-D). The
objection, to the extent relevant, reads as follows:
“Mr. Abdul Kader is candidate for Guruvayoor Constituency. He is Chairman
of Kerala State Wakf Board. He is holding an office of profit under
Government of Kerala and hence disqualified.”
(Emphasis supplied)
However, as per order dated 29.03.2011, the objection was overruled
holding that the petitioner failed to prove beyond doubt as to whether the
elected office bearers of the Wakf Board would come under the purview of
the office of profit as stated under Article 191 of the Constitution of
India [Annexure-P1(c)-(Annexure-C)].
PLEADINGS IN THE ELECTION PETITION
To see whether the facts pleaded in the election petition constitute a
cause of action, we shall extract the relevant ones, with emphasis
supplied. At Paragraph-3 of the election petition, it is stated as follows:
“3. The petitioner respectfully submits that on the date of election, the
first respondent was disqualified to contest the election as he was
admittedly on that day holding an office of profit, namely the Chairperson
of the Kerala State Wakf Board. In terms of Section 14(9) of the Wakf Act
(Central Act 43) of 1995, the Chairperson of the State Wakf Board, which is
constituted by the State Government, namely the first respondent was
appointed as Chairman of the Kerala State Wakf Board on 29th December,
2008. ….”
xxx xxx xxx
“The Chairperson of the State Wakf Board is performing public duties
particularly of statutory nature under the Wakf Act 1995. He exercises even
Quasi Judicial and supervisory powers. He receives such remuneration as are
provided for and prescribed by the Government of Kerala. …”
Paragraph-4 of the election petition to the extent relevant, reads as
follows:
“4. Article 191 of the Constitution of India to the extent relevant reads
as follows:-
“191. Disqualification of membership.-(1) A person shall be disqualified
for being chosen as, and for being, a member of the Legislative Assembly or
Legislative Council of a State-
(a) if he holds any office of profit under the Government of India or the
Government of any State specified in the First Schedule, other than an
office declared by the Legislature of the State by law not to disqualify
its holder;
(b) if he is of unsound mind and stands so declared by a competent court;
(c) if he is an undischarged insolvent;
(d) if he is not a citizen of India, or has voluntarily acquired the
citizenship of a foreign State, or is under any acknowledgement of
allegiance or adherence to a foreign State;
(e) if he is so disqualified by or under any law made by Parliament.
(Explanation.-For the purposes of this clause, a person shall not be deemed
to hold an office of profit under the Government of India or the Government
of any State specified in the First Schedule by reason only that he is a
Minister either for the Union or for such State.
(2) A person shall be disqualified for being a member of the Legislative
Assembly or Legislative Council of a State if he is so disqualified under
the Tenth Schedule).”
Paragraph-5 of the election petition refers to the objection before the
Returning Officer and the order passed thereof, which we have already
referred to above.
Paragraph-6 of the election petition reads as follows:
“6. The petitioner respectfully submits that in terms of the principles
evolved by the Apex Court, the first Respondent falls within the expression
‘holder of an office of profit’ in view of the following admitted facts,
among other tests.
(1) He was appointed by the State of Kerala, from members of a
statutorily constituted body.
(2) He is removable by the State Government.
(3) The resignation tendered by him has to be accepted and a successor
appointed and said appointment should be duly notified in the Gazette,
which was not done.
(4) The first Respondent has been admittedly granted honorarium,
allowances and enjoying the facility of a car at State expenses and drawing
other pecuniary advantages.
(5) The office held by him is a public office.
(6) There is a degree of control by and dependence on government and
governmental functions are performed.
Besides, paying the remuneration the functions performed by the first
Respondent, the holder of an office of profit, are carried on by him from
the Government with an effective Governmental control over his duties and
functions. Undoubtedly from the office that he holds the first Respondent
is deriving pecuniary gains and the office he holds is that of a permanent
nature.”
At Paragraph-7 of the election petition, it is pleaded as follows:
“7. The first Respondent has been granted the facility of a car driver
whose salary and other allowances are paid also from the funds of the
Government of Kerala. This also goes to point out that the office that he
holds is that of an ‘office of profit’. …”
At Paragraph-10 of the election petition, it is averred as follows:
“10. Since, admittedly on the date of the election, the first Respondent
was holding an office of profit as Chairperson of the Kerala State Wakf
Board, he was disqualified to contest the elections. …”
Ground-A of the election petition, to the extent relevant, reads as
follows:
“A. Admittedly on the date of the election, the returned candidate, the
first Respondent was disqualified to contest the elections under Section
100 (1) (a) in that he was holding an office of profit as contemplated
under Article 191 of the Constitution of India, the Chairperson of the Wakf
Board. Admittedly the first Respondent was appointed by the State of
Kerala. Concededly he was entitled to and was drawing financial perquisites
and allowances and enjoying pecuniary benefit from the State as Chairperson
of the State Wakf Board. He therefore, was holding an office of profit
which is a disqualification as contemplated under Article 191 of the
Constitution of India and even now he is continuing as such in the
position. Thus, the first respondent was wholly disqualified to contest the
elections to the Kerala State Legislative Assembly. …”
THE REPRESENTATION OF THE PEOPLE ACT, 1951
Section 83 of The Representation of the People Act, 1951 (hereinafter
referred to as ‘the RP Act’), reads as follows:
“ 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.]”
(Emphasis supplied)
The requirement under Section 83(1)(a) of the RP Act in contradistinction
to Section 81(b) of the RP Act is that the election petition need contain
only a concise statement of the material facts and not material
particulars. ‘Concise’ according to Oxford Dictionary means, ‘brief and
comprehensive’. Concise Oxford Dictionary has given the meaning to the
expression ‘Concise’ as ‘giving a lot of information clearly and in few
words’. As per Webster Comprehensive Dictionary, International Edition,
expression has been defined as ‘expressing much in brief form’. Having
furnished the facts in a compendious manner, can it be said that there is
no concise statement of material facts?
Holding an office of profit under the Government of India or Government of
any State is the disqualification. Whether that ground is discernible if
the election petition is read as a whole, is the simple exercise to be
undertaken by the High Court, when called upon to do so under Order VII
Rule 11(a) of CPC. At Paragraph-3 of the election petition, it is contended
that the respondent was holding an office of profit, viz., the Chairperson
of the Kerala State Wakf Board. Again, in the same paragraph, it is stated
that the Chairperson of the State Wakf Board receives such remuneration as
are provided for and prescribed by the Government of Kerala. After quoting
Article 191 of the Constitution, it is pleaded that any person who holds an
office of profit under the State Government, is debarred from contesting
the elections to the Legislative Assembly. It is again pleaded that the
State of Kerala having not made any legislation on removal of
disqualification of the Chairperson of the Wakf Board, the Chairperson of
the Kerala State Wakf Board is disqualified under Article 191 of the
Constitution. At Paragraph-6, enumerating the particulars, it is pleaded
that he was holding an office of profit in having been granted honorarium,
allowances and enjoying the facility of a car at State expenses and drawing
other pecuniary advantages. Again, under Paragraph-7, it is stated that the
first respondent was provided with chauffeur whose salary and allowances
are paid also from the funds of the Government of Kerala. At Paragraph-10,
it is clearly stated that “since admittedly on the date of the election,
the first Respondent was holding an office of profit as Chairperson of the
Kerala State Wakf Board, he was disqualified to contest the election”. In
Ground-A in the election petition, it is reiterated that the first
respondent suffered from the disqualification under Article 191 of the
Constitution of India since he was holding an office of profit as
Chairperson of the Wakf Board and that he was entitled and drawing
financial perquisites and allowances and pecuniary benefits from the State
of Kerala as Chairperson of the Kerala State Wakf Board and, hence, he was
holding an office of profit which was a disqualification under Article 191
of the Constitution of India. Thus, he was disqualified to contest the
election to the Kerala State Legislative Assembly. These averments, to us,
clearly disclose a cause of action, viz., the respondent was holding the
position as Chairperson of the Kerala State Wakf Board and deriving
financial benefits from the Kerala Government is disqualified under Article
191(1)(a) of the Constitution of India, as holding of an office of profit
under the State Government of Kerala. That is the triable issue in the
election petition.
The question whether a schedule or annexures to the election petition is an
integral part of the election petition was first discussed by this Court in
Sahodrabai Rai v. Ram Singh Aharwar[1]. It was held that a schedule or an
annexure which is merely an evidence in the case and included only for the
sake of adding strength to the petitioner, does not form an integral part
of the election petition. It was a case where the annexures were not
verified by the election petitioner as required under Section 83(2) of the
RP Act.
The question raised in Sahodrabai Rai case (supra) was:
“Whether the election petition is liable to be dismissed for contravention
of Section 81(3)[2] of The Representation of the People Act, 1951 as copy
of Annexure-A to the petition was not given along with the petition for
being served on the respondents.”
The issue was again considered by this Court in M. Kamalam v. Dr. V.A. Syed
Mohammed[3]. Paragraph-5 of the said judgment reads as follows:
“5. Now, the first question which arises is as to what constitutes an
election petition for the purpose of Section 81 sub-section (3). Is it
confined only to election petition proper or does it also include a
schedule or annexure contemplated in sub-section (2) of Section 83 or a
supporting affidavit referred to in the proviso to Section 83 sub-section
(1)? To answer this question, we must turn to Section 83 which deals with
contents of an election petition. Sub-section (1) of that section sets out
what an election petition shall contain [pic]and provides that it shall be
signed by the petitioner and verified in the manner laid down in the Code
of Civil Procedure, 1908 for the verification of pleadings. The proviso
requires that where the petitioner alleges any corrupt practice, the
election 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. The context in which the proviso occurs clearly
suggests that the affidavit is intended to be regarded as part of the
election petition. Otherwise, it need not have been introduced in a section
dealing with contents of an election petition nor figured as a proviso to a
sub-section which lays down what shall be the contents of an election
petition. Sub-section (2) also by analogy supports this inference. It
provides that any schedule or annexure to an election petition shall be
signed by the petitioner and verified in the same manner as an election
petition. It is now established by the decision of this Court in Sahodrabai
Rai v. Ram Singh Aharwar that sub-section (2) applies only to a schedule or
annexure which is an integral part of the election petition and not to a
schedule or annexure which is merely evidence in the case but which is
annexed to the election petition merely for the sake of adding strength to
it. The scope and ambit of sub-section (2) was explained in the following
words by Hidayatullah, J., speaking on behalf of the Court in Sahodrabai
case at pp. 19-20:
“We are quite clear that sub-section (2) of Section 83 has reference not to
a document which is produced as evidence of the averments of the election
petition but to averments of the election petition which are put, not in
the election petition but in the accompanying schedules or annexures. We
can give quite a number of examples from which it would be apparent that
many of the averments of the election petition are capable of being put as
schedules or annexures. For example, the details of the corrupt practice
there in the former days used to be set out separately in the schedules and
which may, in some cases, be so done even after the amendment of the
present law. Similarly, details of the averments too compendious for being
included in the election petition may be set out in the schedules or
annexures to the election petition. The law then requires that even though
they are outside the election petition, they must be signed and verified,
but such annexures or schedules are then treated as integrated with the
election petition and copies of them must be served on the respondent if
the requirement regarding service of the election petition is to be wholly
complied with. But what we have said here does not apply to documents which
are merely evidence in the case but which for reasons of clarity and to
lend force to the petition are not kept back but produced or filed with the
election petitions. They are in no sense an integral part of the averments
of the petition but are only evidence of those averments and in proof
thereof.”
It would, therefore, be seen that if a schedule or annexure is an integral
part of the election petition, it must be signed by the petitioner and
verified, since [pic]it forms part of the election petition. The subject-
matter of sub-section (2) is thus a schedule or annexure forming part of
the election petition and hence it is placed in Section 83 which deals with
contents of an election petition. …”
(Emphasis supplied)
All the annexures attached to the election petition in the present case
have been signed and verified by the election petitioner as per the
requirement under Section 83(2) of the RP Act, as can be seen from Annexure-
P1(Colly). Therefore, Annexure-P1(d) to the election petition (Annexure-D
herein) forms an integral part of the election petition. There is a clear
and unambiguous plea that the respondent was holding the post of Kerala
State Wakf Board, holding an office of profit under the Government of
Kerala and, hence, he was disqualified.
Annexure-D is referred at Paragraph-5 of the election petition, which reads
as follows:
“5. Even so, the first Respondent submitted his nomination before the
Returning Officer in the said Constituency. Objection was taken that the
first Respondent was disqualified to be chosen to fill the seat under the
Constitution of India. But the same was rejected by the Returning Officer
without any application of Mind. A copy of the order is produced herewith
and marked as Annexure C, the date shown therein has been corrected as
29.3.2011, while its English translation is produced herewith and marked as
Annexure C1 and the objection submitted by the petitioner with the
forwarding letter is produced and marked as Annexure D.”
Recently, a three-Judge Bench of this Court in G.M. Siddeshwar v. Prasanna
Kumar[4] (Judgment is authored by one of us, Lokur, J.), had an occasion to
refer to this issue. Referring to Sahodrabai Rai case (supra), it was held
at Paragraphs-54 to 56 as follows:
“54. In Sahodrabai Rai v. Ram Singh Aharwar[5] the question raised was as
follows: (AIR p. 1080, para 3)
“3. … ‘Whether the election petition is liable to be dismissed for
contravention of Section 81(3) of the Representation of the People Act,
1951 as copy of Annexure A to the petition was not given along with the
petition for being served on the respondents.’”
55. It was noted that the contents of the pamphlet, in translation, were
incorporated in the election petition. It was also noted that the trial of
an election petition has to follow, as far as may be, the provisions of
CPC. Therefore, this Court approached the problem by looking at CPC to
ascertain what would have been the case if what was under consideration was
a suit and not the trial of an election petition.
56. It was held that where the averments are too compendious for being
included in an election petition, they may be set out in the schedules or
annexures to the election petition. In such an event, these schedules or
annexures would be an integral part of the election petition and must,
therefore, be served on the respondents. This is quite distinct from
documents which may be annexed to the election petition by way of evidence
and so do not form an integral part of the averments of the election
petition and may not, therefore, be served on the respondents.”
Further, at Paragraph-57, there is also reference to
M. Kamalam case (supra) and it is held as follows:
“57. In M. Kamalam v. V.A. Syed Mohammed this Court followed Sahodrabai Rai
and held that a schedule or an annexure which is an integral part of an
election petition must comply with the provisions of Section 83(2) of the
Act. Similarly, the affidavit referred to in the proviso to Section 83(1)
of the Act where the election petition alleges corrupt practices by the
returned candidate also forms a part of the election petition. If the
affidavit, at the end of the election petition is attested as a true copy,
then there is sufficient compliance with the requirement of Section 81(3)
of the Act and would tantamount to attesting the election petition itself.”
The pleadings, if taken as a whole, would clearly show that they constitute
the material facts so as to pose a triable issue as to whether the first
respondent is disqualified to contest election to the Kerala State
Legislative Assembly while holding an office of profit under the State
government as Chairperson of the Kerala State Wakf Board.
The question is not whether the Chairperson of the Kerala State Wakf Board
is an office of profit or not. That is the issue to be tried. Question is
whether the petitioner has raised such a question in the election petition.
The disqualification under the Constitution of India being, holding an
office of profit under the State Government. Petitioner has furnished all
the material particulars in that regard. Therefore, the petition discloses
a cause of action.
After all, the inquiry under Order VII Rule 11(a) of CPC is only as to
whether the facts as pleaded disclose a cause of action and not complete
cause of action. The limited inquiry is only to see whether the petition
should be thrown out at the threshold. In an election petition, the
requirement under Section 83 of the RP Act is to provide a precise and
concise statement of material facts. The expression ‘material facts’
plainly means facts pertaining to the subject matter and which are relied
on by the election petitioner. If the party does not prove those facts, he
fails at the trial (see Philipps v. Philipps and others[6] ; Mohan Rawale
v. Damodar Tatyaba alias Dadasaheb and others[7]).
This Court in Azhar Hussain v. Rajiv Gandhi[8], at
Paragraph-11, has held that:
“11. … Whether in an election petition a particular fact is material or not
and as such required to be pleaded is dependent on the nature of the charge
levelled and the circumstances of the case. …”
The charge levelled is that the respondent holds an office of profit
as the Chairperson of the Kerala State Wakf Board and in that capacity he
enjoys the profits attached to that office from the Government of Kerala.
In V.S. Achuthanandan v. P.J. Francis and another[9] , a
three-Judge Bench of this Court has taken the view that only because full
particulars are not given, an election petitioner is not to be thrown out
at the threshold. To quote Paragraph-15:
“15. … An election petition was not liable to be dismissed in limine merely
because full particulars of corrupt practice alleged were not set out. It
is, therefore, evident that material facts are such primary facts which
must be proved at the trial by a party to establish existence of a cause of
action. Whether in an election petition a particular fact is a material
fact or not, and as such, required to be pleaded is a question which
depends on the nature of the charge levelled, the ground relied upon, and
in the light of the special circumstances of the case. ..”
Again at Paragraph-16 of V.S. Achuthanandan case (supra), it was held
that:
“16. … So long as the claim discloses some cause of action or raises some
questions fit to be decided by a Judge, the mere fact that the case is weak
and not likely to succeed is no ground for striking it out. The
implications of the liability of the pleadings to be struck out on the
ground that it discloses no reasonable cause of action are generally more
known than clearly understood. …”
xxx xxx xxx
“… the failure of the pleadings to disclose a reasonable cause of action is
distinct from the absence of full particulars. …”
(Emphasis supplied)
In Hari Shanker Jain v. Sonia Gandhi[10] , a three-Judge Bench of this
Court held that the expression ‘cause of action’ would mean facts to be
proved, if traversed, in order to support his right to the judgment of the
court and that the function of the party is to present a full picture of
the cause of action with such further information so as to make opposite
party understand the case he will have to meet. To quote Paragraph-23:
“23. … 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, Jitendra Bahadur Singh
v. Krishna Behari.) 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 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.”
In Syed Dastagir v. T.R. Gopalakrishna Setty[11], while referring to the
pleadings, it has been held at Paragraph-9 that:
“9. … In construing a plea in any pleading, courts must keep in mind that a
plea is not an expression of art and science but an expression through
words to place fact and law of one’s case for a relief. Such an expression
may be pointed, precise, sometimes vague but still it could be gathered
what he wants to convey through only by reading the whole pleading,
depending on the person drafting a plea. …”
“ … So to insist for a mechanical production of the exact words of a
statute is to insist for the form rather than the essence. So the absence
of form cannot dissolve an essence if already pleaded.”
In Mayar (H.K.) Ltd. v. Owners & Parties, Vessel M.V. Fortune Express[12],
this Court at Paragraph-12 held that:
“12. … The court has to read the entire plaint as a whole to find out
whether it discloses a cause of action and if it does, then the plaint
cannot be rejected by the court exercising the powers under Order 7 Rule 11
of the Code. Essentially, whether the plaint discloses a cause of action,
is a question of fact which has to be gathered on the basis of the
averments made in the plaint in its entirety taking those averments to be
correct. A cause of action is a bundle of facts which are required to be
proved for obtaining relief and for the said purpose, the material facts
are required to be stated but not the evidence except in certain cases
where the pleadings relied on are in regard to misrepresentation, fraud,
wilful default, undue influence or of the same nature. So long as the
plaint discloses some cause of action which requires determination by the
court, the mere fact that in the opinion of the Judge the plaintiff may not
succeed cannot be a ground for rejection of the plaint.”
In a recent decision in Ponnala Lakshmaiah v. Kommuri Pratap Reddy and
others[13], this Court had held at Paragraphs-17 and 29 that:
“17. … The courts need to be cautious in dealing with requests for
dismissal of the petitions at the threshold and exercise their powers of
dismissal only in cases where even on a plain reading of the petition no
cause of action is disclosed.”
(Emphasis supplied)
xxx xxx xxx
“29. … An election which is vitiated by reason of corrupt practices,
illegalities and irregularities enumerated in Sections 100 and 123 of the
Act cannot obviously be recognised and respected as the decision of the
majority of the electorate. The courts are, therefore, duty-bound to
examine the allegations whenever the same are raised within the framework
of the statute without being unduly hypertechnical in their approach and
without being oblivious of the ground realities.”
Finally, as cautioned by this Court in Raj Narain v. Indira Nehru Gandhi
and another [14], it was held that:
“19. Rules of pleadings are intended as aids for a fair trial and for
reaching a just decision. An action at law should not be equated to a game
of chess. Provisions of law are not mere formulae to be observed as
rituals. Beneath the words of a provision of law, generally speaking, there
lies a juristic principle. It is the duty of the court to ascertain that
principle and implement it. …”
(Emphasis supplied)
Guided by the settled principles of law referred to above, we are of the
view that the election petition having disclosed a cause of action, it
should not have been thrown out at the threshold. The impugned order and
judgment are hence set aside. The appeals are allowed. The election
petition is remitted to the High Court for trial in accordance with law.
There is no order as to costs.
....………………….....…J.
(MADAN B. LOKUR)
…......……………………J.
(KURIAN JOSEPH)
New Delhi;
August 29, 2014.
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[1] AIR 1968 SC 1079
[2] 81. Presentation of petitions.— xxx (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.
[3] (1978)2 SCC 659
[4] (2013) 4 SCC 776
[5] AIR 1968 SC 1079
[6] (1878) 4 QBD 127, 133
[7] (1994) 2 SCC 392, 399
[8] 1986 Supp SCC 315
[9] (1999) 3 SCC 737
[10] (2001) 8 SCC 233
[11] (1999) 6 SCC 337
[12] (2006) 3 SCC 100
[13] (2012) 7 SCC 788
[14] (1972) 3 SCC 850
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REPORTABLE
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23
