Page 1

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.:   

1. 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.”

1

REPORTABLE

Page 2

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.

2. 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)

3. 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.  

4. 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.

2

Page 3

UNDISPUTED FACTS

5. 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)

6. 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

7. 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

Page 4

“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. …”

8. 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;

4

Page 6

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.”  

11. 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’. …”

12. 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  

6

Page 7

Chairperson  of  the  Kerala  State  Wakf  Board,  he  was  disqualified to contest the elections. …”

13. 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  

14. 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  

7

Page 8

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 83(1)(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  

8

Page 9

compendious manner, can it be said that there is no concise  

statement of material facts?

15. 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  

9

Page 10

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  

10

Page 11

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.

16. 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  

Aharwar1.  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.  

17. 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  

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.

11

Page 12

Annexure-A to the petition was not given along with the  petition for being served on the respondents.”  

18. The  issue  was  again  considered  by  this  Court  in  M.  

Kamalam v. Dr. V.A. Syed Mohammed3. 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  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  

3 (1978)2 SCC 659

12

Page 13

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   

13

Page 14

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  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)

19. 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.

20. 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  

14

Page 15

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.”

21. Recently,  a  three-Judge  Bench  of  this  Court  in  G.M.  

Siddeshwar v.  Prasanna Kumar4 (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 Aharwar5 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.

4 (2013) 4 SCC 776 5 AIR 1968 SC 1079

15

Page 16

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.”

22. 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.”

23. 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  

16

Page 17

holding  an  office  of  profit  under  the  State  government  as  

Chairperson of the Kerala State Wakf Board.

24. 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.

25. 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  

17

Page 18

and others6 ;  Mohan Rawale v.  Damodar Tatyaba alias  

Dadasaheb and others7).  

26. This  Court  in  Azhar  Hussain v.  Rajiv  Gandhi8,  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.  

27. In  V.S.  Achuthanandan v.  P.J.  Francis  and  

another9 , 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  

6 (1878) 4 QBD 127, 133 7 (1994) 2 SCC 392, 399 8 1986 Supp SCC 315 9  (1999) 3 SCC 737

18

Page 19

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. ..”  

28.  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)

29. In  Hari  Shanker Jain v.  Sonia Gandhi10 ,  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  

10 (2001) 8 SCC 233

19

Page 20

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.”

30. In  Syed  Dastagir v.  T.R.  Gopalakrishna  Setty11,  

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  

11 (1999) 6 SCC 337

20

Page 21

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.”

31. In  Mayar (H.K.) Ltd. v.  Owners & Parties, Vessel  

M.V. Fortune Express12, 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.”

12 (2006) 3 SCC 100

21

Page 22

32. In  a  recent  decision  in  Ponnala  Lakshmaiah v.  

Kommuri Pratap Reddy and others13, 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.”

33. 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  

13 (2012) 7 SCC 788  14  (1972) 3 SCC 850

22

Page 23

speaking, there lies a juristic principle. It is the duty of  the court to ascertain that principle and implement it.  …”

(Emphasis supplied)

34. 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.

35. There is no order as to costs.

                                        ....………………….....…J.           (MADAN B. LOKUR)

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

New Delhi; August 29, 2014.

23