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Monday, September 8, 2014

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. = CIVIL APPEAL NOS. 69-70 OF 2012 Ashraf Kokkur … Appellant (s) Versus K.V. Abdul Khader Etc. … Respondent (s) = 2014 - Aug. Part - http://judis.nic.in/supremecourt/filename=41853

 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.

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.

-----------------------
[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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