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REPORTABLE

IN THE SUPREME COURT OF INDIA

CIVIL APPELLATE JURISDICTION

CIVIL APPEAL NO. 4080 OF 2014

KULDEEP SINGH PATHANIA                  … APPELLANTS (S)

VERSUS

BIKRAM SINGH JARYAL   … RESPONDENT(S)

J U D G M E N T

KURIAN, J.:

1. Chapter III of Part VI of The Representation of the People

Act, 1951 (hereinafter referred to as “the Act”) deals with trial of

election petitions. Under Section 86(1) of the Act, “the High Court

shall dismiss an election petition which does not comply with the

provisions of Section 81 or Section 82 or Section 117”.  Section

100 of the Act provides for grounds for declaring election to be

void. Section 100(1)(d)(iii) of the Act provides that an election of a

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returned candidate can be declared to be void if the High Court is

of  the  opinion  that  the  result  of  the  election,  in  so  far  as  it

concerns a returned candidate, has been materially affected by

the improper  reception,  refusal  or  rejection of  any vote or  the

reception  of  any  vote  which  is  void.  Section  81  provides  for

institutional  requirements  including  limitation  and  Section  117

provides  for  deposit  of  security  for  costs.   Section  83,  under

Chapter  II,  deals  with  contents  of  an  election  petition.  Under

Section 83(1)(a) of the Act, “an election petition shall contain a

concise  statement  of  material  facts  on  which  the  petitioner

relies”.  Under Order VII Rule 11(a) of the Code of Civil Procedure,

1908 (hereinafter  referred  to  as  “the  Code”),  a  plaint  shall  be

rejected where it does not disclose a cause of action and under

Order XIV Rule 2(2), the court may deal with the preliminary issue

on jurisdiction of the court and bar to the suit created by any law

in force. These are the provisions relevant for consideration of the

present case.  

2. The  appellant  lost  election  from  Bhattiyat  Assembly

Constituency of  Himachal  Pradesh Legislative Assembly held in

2012  by  a  margin  of  111  votes.  He  filed  an  election  petition

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mainly on the grounds under Section 100(1)(d)(iii) of the Act. Of

the six issues settled, issues 2 to 5 were treated as preliminary

issues, of which, issues 2 and 3 related to cause of action:

“2) Whether the election petition is liable to be dismissed in limine for lack of material facts and particulars, as alleged?  

3) Whether  the  election  petition  is  not maintainable  for  want  of  any  cause  of action, as alleged?”   

3. Appellant  is  aggrieved  since  his  petition  has  been

dismissed, based on the findings on the preliminary issues that

the election petition lacked in material  facts as required under

Section 83(1)(a) of the 1951 Act and as such, did not disclose any

cause of action.  

4. As  far  as  the  averments  in  the  election  petition  are

concerned,  it  is  not  necessary  for  us  to  refer  to  the  same  in

extenso since they have been summarized in paragraph-27 of the

impugned judgment, which reads as follows:  

“27. The “violations” alleged by the petitioner during  poling  and  counting  of  votes  can  be grouped  in  the  following  three  categories, which shall be dealt with one by one:-

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I. Exercise  of  dual  right  of franchise  by  a  voter  and discrepancy  between  the  EVM record  and  the  record maintained  in  Form  17-A  at polling station No.92-Kamla;

II. Improper reception of 30 postal ballot papers; and  

III. Discrepancy  regarding  100 postal  ballot  papers-whether 597 or 697?”

5. The High Court dealt with the violations referred to above

extensively so as to find out whether a cause of action is made

out, but committed a grave error by considering the explanations

offered  in  the  replies  filed  by  the  respondents.  All  the  three

violations have been discussed meticulously by the High Court

with reference to the replies furnished by the respondents and the

court came to the conclusion that the petition did not disclose any

cause of  action since it  lacked material  facts.   The High Court

ventured  into  such  an  elaborate  enquiry  in  the  light  of  the

pleadings in the replies, to see whether the result of the election

has  been  materially  affected,  apparently  or  rather  mistakenly,

under Order XIV Rule 2.

6. Order  XIV  deals  with  settlement  of  issues  and

determination of suit on issues of law or on issues agreed upon.

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Order XIV Rule 2 provides for disposal of a suit on a preliminary

issue and under sub-Rule (2) of Rule 2, if the court is of opinion

that a case or part thereof can be disposed of on an issue of law

only, it may try that issue first, in case it relates to jurisdiction of

the  court  or  bar  to  entertaining  the  suit.  After  the  1976

amendment,  the scope of  a  preliminary issue under  Order  XIV

Rule 2(2) is limited only to two areas, one is jurisdiction of the

court, and the other, bar to the suit as created by any law for the

time being  in  force.  The whole  purpose of  trial  on preliminary

issue is to save time and money. Though it is not a mini trial, the

court  can  and  has  to  look  into  the  entire  pleadings  and  the

materials available on record, to the extent not in dispute. But

that is not the situation as far as the enquiry under Order VII Rule

11 is concerned. That is only on institutional defects. The court

can only see whether the plaint, or rather the pleadings of the

plaintiff,  constitute  a  cause  of  action.  Pleadings  in  the  sense

where,  even after  the stage of  written statement,  if  there is  a

replication filed, in a given situation the same also can be looked

into to see whether  there is  any admission on the part  of  the

plaintiff. In other words, under Order VII Rule 11, the court has to

take a decision looking at the pleadings of the plaintiff only and

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not on the rebuttal made by the defendant or any other materials

produced by the defendant.

7. It  appears,  the  High  Court  committed  a  mistake in  the

present case, since four out of the six issues settled were taken as

the preliminary issues. Two such issues actually are relatable only

to  Order  VII  Rule  11  of  the  Code,  in  the  sense  those  issues

pertained  to  the  rejection  at  the  institution  stage  for  lack  of

material  facts  and for  not  disclosing a cause of  action.  Merely

because it is a trial on preliminary issues at the stage of Order

XIV, the scope does not change or expand. The stage at which

such an enquiry is undertaken by the court makes no difference

since an enquiry under Order VII Rule 11(a) of the Code can be

taken up at any stage.

8. Thus, for an enquiry under Order VII Rule 11 (a), only the

pleadings of the plaintiff-petitioner can be looked into even if it is

at the stage of trial of preliminary issues under Order XIV Rule

2(2). But the entire pleadings on both sides can be looked into

under  Order  XIV  Rule  2(2)  to  see  whether  the  court  has

jurisdiction and whether there is a bar for entertaining the suit.

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9. In the present case, the issue relates to an enquiry under

Order VII Rule 11(a) of the Code, and hence, there is no question

of a preliminary issue being tried under Order XIV Rule 2(2) of the

Code. The court exercised its jurisdiction only under Section 83(1)

(a) of the Act read with Order VII Rule 11(a) of the Code. Since the

scope of the enquiry at that stage has to be limited only to the

pleadings of the plaintiff, neither the written statement nor the

averments, if any, filed by the opposite party for rejection under

Order VII Rule 11(a) of the Code or any other pleadings of the

respondents can be considered for that purpose.  

10. In Mayar (H.K.) Ltd. and others v. Owners & Parties,

Vessel M.V. Fortune Express and others1, this Court has dealt

with a similar issue. To the extent relevant, paragraph-12 reads as

follows:  

“12. From the aforesaid, it  is apparent that the plaint cannot be rejected on the basis of the allegations made by the defendant in his written statement or in an application for re- jection of the plaint. 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 ex- ercising the powers under Order 7 Rule 11 of the Code. Essentially, whether the plaint dis- closes a cause of action, is a question of fact

1 (2006) 3 SCC 100

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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 determi- nation by the court, the mere fact that in the opinion of the Judge the plaintiff may not suc- ceed cannot be a ground for rejection of the plaint. …”  

11.  It  is  not  necessary  to  load  this  judgment  with  other

judgments dealing with this first principle of Order VII Rule 11(a)

of the Code. As held by this Court in Virender Nath Gautam v.

Satpal Singh and others2, at paragraph-52:  

“52. The  High  Court,  in  our  considered opinion,  stepped  into  prohibited  area  of considering correctness  of  allegations and evidence in support of averments by enter- ing into the merits of the case which would be permissible only at the stage of trial of the election petition and not at the stage of consideration whether the election petition was maintainable  and dismissed the peti- tion. The said action, therefore, cannot be upheld  and  the  order  deserves  to  be  set aside.”

2 (2007) 3 SCC 617

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12. As  we  have  been  taken  through  the  averments  in  the

election  petition  and  we  are  satisfied  that  the  petition  has

disclosed  a  cause  of  action,  it  is  not  necessary  to  remit  the

petition for a fresh enquiry in that regard.

13. The appeal is however allowed, the impugned order is set

aside and the election petition is remitted to the High Court to try

it on merits expeditiously, and being one filed in the year 2013,

preferably within a period of four months. We make it clear that

we have not expressed any opinion on the merits of the case.

14. There shall be no order as to costs.

..……………………….J.                 (KURIAN JOSEPH)

.……………………….J.            (A.M. KHANWILKAR)

NEW DELHI; JANUARY 24, 2017.

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