REPORTABLE IN THE SUPREME COURT OF INDIA

CIVIL APPELLATE JURISDICTION

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

Nandiesha Reddy Appellant

Versus

Mrs.Kavitha Mahesh Respondent

With

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

N.S. Nandish Reddy Appellant

Versus

Mrs. Kavitha Mahesh Respondent

J U D G M E N T

CHANDRMAULI KR.PRASAD,J.

1. Nandiesha Reddy got elected to the Karnataka  

Assembly in the general election from K.R.Pura  

Assembly Constituency held on 10th of May, 2008.  

His election was challenged by Kavitha Mahesh,  

inter alia, on the ground that her nomination was  

illegally not accepted by the Returning Officer

which rendered Nandiesha Reddy’s election void.  

Nandiesha Reddy (hereinafter to be referred to as  

‘the Returned Candidate’) filed two applications;  

one under Order VI Rule 16 of the Code of Civil  

Procedure  for  striking  out  pleading  from  the  

election petition and another under Sections 83  

and 86 of the Representation of the People Act,  

1951 (hereinafter to be referred to as ‘the Act’)  

read with Order VII Rule 11 of the Code of Civil  

Procedure,  1908  for  dismissal  of  the  election  

petition.  The  Karnataka  High  Court  by  the  

impugned  orders  dated  8th October,  2009  and  

12th November,  2009  dismissed  the  aforesaid  

applications.  

2. The  Returned  Candidate  assails  aforesaid  

orders in the present Special Leave Petitions.

3. Leave granted.

4. Short  facts  giving  rise  to  the  present  

appeals are that the Election Commission of India  

on 16th of April, 2008 notified its intention to  

hold  General  election  to  the  Karnataka  State  

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Legislative Assembly and announced the election  

schedule.  According  to  the  schedule,  the  last  

date for submission of the nomination was 23rd of  

April,  2008  whereas  the  scrutiny  of  the  

nomination papers was to be undertaken on 24th of  

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

of  May,  2008.  Kavitha  Mahesh  (hereinafter  

referred to as ‘the Election Petitioner’) was an  

electorate  in  the  combined  Varthur  Assembly  

Constituency  prior  to  de-limitation.  After  de-

limitation the said constituency has been split  

into  three  constituencies,  namely  (i)  

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

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

Petitioner’s name appeared in the electoral roll  

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

contest  the  election  from  K.R.Pura  Assembly  

Constituency,  according  to  the  Election  

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

set  of  nomination  forms  from  the  Returning  

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

2008  at  about  2.00  P.M.  she  delivered  the  

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nomination papers together with all annexures to  

the  Returning  Officer  and  requested  him  to  

furnish  the  latest  electoral  roll  of  K.R.Pura  

Assembly Constituency in order to extract the new  

part number and serial number of the proposers  

who  had  signed  on  the  nomination  papers  for  

incorporating the same in the appropriate column  

against  their  respective  names.  It  is  alleged  

that the Returning Officer instead of furnishing  

the latest electoral roll of K.R.Pura Assembly  

Constituency,  asked  the  Election  Petitioner  to  

approach  the  Revenue  Office  to  obtain  those  

details.  It has specifically been averred by the  

Election Petitioner that she went to the Revenue  

Office but could not get those details from the  

Revenue Officer and therefore, she went to file  

the nomination papers, presented the same before  

the Returning Officer but it was not received. It  

is her allegation that, thereafter, she attempted  

to  give  a  handwritten  representation  to  the  

Returning  Officer  but  the  same  was  also  not  

accepted.   Hence  she  left  the  place  without  

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filing the nomination. It is also her allegation  

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

in  this  regard  before  the  Chief  Election  

Commissioner.

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

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

in  which  the  Returned  Candidate  was  declared  

elected  from  K.R.Pura  Assembly  Constituency.  

This was challenged by the Election Petitioner in  

an election petition before the Karnataka High  

Court.  The Election of the Returned Candidate  

was sought to be declared null and void on the  

ground of illegal rejection of nomination paper  

at threshold by the Returning Officer.  

6. As  usual,  the  Returned  Candidate  filed  

applications for striking out various paragraphs  

from the election petition.  This was registered  

as  Misc.  Civil  No.  15204  of  2009.   Another  

application  for  dismissal  of  the  election  

petition was filed which was registered as Misc.  

Civil No. 15772 of 2009.  In this application it  

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was pointed out that as the Election Petitioner  

was  not  a  candidate  set  up  by  any  recognised  

political party, for valid nomination according  

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

nomination paper was required to be subscribed by  

ten electors of the constituency. It was further  

pointed out that the Election Petitioner shall  

not be deemed to be duly nominated for election  

from the constituency as she had not made any  

deposit as required under Section 34 of the Act.  

The  Returned  Candidate  further  alleged  non-

compliance  of  Section  81(3)  of  the  Act  and  

contended that he has not been furnished with the  

true attested copy of the election petition and  

its  annexures  as  presented  to  the  Court.  The  

Returned Candidate also sought dismissal of the  

election petition on the ground that the same did  

not  contain  concise  statement  of  the  material  

facts on which the Election Petitioner relied and  

the material facts averred did not disclose any  

cause of action for the relief sought for.

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7. All  these  pleas  raised  by  the  Returned  

candidate were considered and have been overruled  

by the High Court by the impugned orders. While  

rejecting the application (Civil Misc. No. 15204  

of 2009) for striking out the pleading from the  

election  petition  by  order  dated  8th October,  

2009, the High Court observed as follows:

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

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

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

while considering the plea that the averments in  

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the election petition did not disclose any cause  

of action for granting the relief in terms of the  

prayer the High Court observed as follows:

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

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

9. As  regards  the  plea  of  non-deposit  as  

required under Section 34 of the Act, the High  

Court observed as follows:

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

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

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

As regards the plea of the Returned Candidate  

that the Election Petitioner did not furnish the  

copy of the election petition and its annexures  

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as was presented to the Court and that the copies  

were not duly attested, the High Court answered  

the same in the following words:

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

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The  Returned  Candidate’s  pleas  that  the  

election  petition  does  not  contain  concise  

statement of material facts as contemplated under  

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

verified in the manner as laid down under Order  

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

by the High Court. The High Court reproduced the  

verification in its impugned judgment and found  

the same to be in three parts and observed as  

follows:

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

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10. Mr.  Dushyant  Dave,  learned  Senior  Counsel  

appearing on behalf of the appellant points out  

that from the averments in the election petition  

it is apparent that Election Petitioner was not a  

candidate set up by a recognised political party  

and  her  nomination  was  not  subscribed  by  10  

electors.Accordingly he submits that the Election  

Petitioner cannot be considered to be a candidate  

so  as  to  maintain  the  election  petition.   He  

draws  our  attention  to  the  first  proviso  of  

Section 33 of the Act and points out that for a  

valid nomination it has to be subscribed by 10  

electors.  In support of the submission learned  

counsel  for  the  appellant  relies  on  a  

Constitution Bench judgment of this Court in the  

case of  Mithilesh K. Sinha v. Returning Officer  

for Presidential Election 1993 Supp. (4) SCC 386  

and our attention is drawn to paragraphs 30 and  

31 of the judgment which read as under:

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

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

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

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

Reliance has also been placed on a decision  

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

Pendyala Venakata Krishna Rao (2007) 11 SCC 1 and  

reference has been made to paragraphs 7 and 8 of  

the judgment which read as follows:  

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

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

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

11. Election Petitioner appears in person.  She  

submits that her nomination paper was subscribed  

by ten electors of the Constituency and presented  

before the Returning Officer but the same was not  

accepted.  We have bestowed our consideration to  

the rival submissions.  The Election Petitioner,  

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in the election petition, has stated that she had  

“obtained TEN PROPOSERS signatures in Part II of  

Annexure ‘A’ together with their true copies of  

their Elector Photo Identity Cards”.  Her further  

plea in the election petition is that “as per the  

given new part number, when we checked for the  

names of the proposers in the concerned Electoral  

Roll, their names were not found”.  The relevant  

pleadings in this regard are at paragraphs 9, 10  

and 11 of the election petition and we deem it  

expedient to reproduce the same as under:

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

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

10.  It is most respectfully submitted  that to the petitioners surprise the 4th  

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

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

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

12. From a plain reading of these averments it is  

evident that the Election Petitioner has averred  

that nomination paper was signed by 10 electors.  

It was delivered to the Returning Officer with a  

request to make available latest electoral roll  

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

part number and serial number of the proposers in  

the respective columns.  However, the Returning  

Officer  stated  that  he  is  not  in  possession  

thereof  and  asked  the  Election  Petitioner  to  

approach the revenue office located at the ground  

floor  for  verifying  and  extracting  the  part  

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number  and  serial  number  of  the  proposers.  

Attempts  made  on  behalf  of  the  Election  

Petitioner to get those details from the revenue  

office  were  rendered  futile.  Thereafter,  the  

Election  Petitioner  approached  the  Returning  

Officer again for delivering the nomination paper  

with the explanation. It did not yield any result  

and the Returning Officer stated that he “will  

not  receive  your  nomination  paper  without  

complying the requirement of new part number and  

serial number against the proposers in Part-II of  

Annexure ‘A’ and if you compel me to receive now,  

tomorrow I will reject it”.  These averments at  

this  stage  have  to  be  accepted  as  true  and,  

therefore, the question is as to whether Election  

Petitioner can be said to be a candidate so as to  

maintain the election petition and further the  

Returning Officer was right in refusing to accept  

the nomination paper on the purported ground that  

it did not contain the serial number and part  

number of the proposers.  Section 81 of the Act  

inter alia provides for presentation of election  

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petition.  It reads as follows:  

“81.  Presentation  of  petitions.—(1)  An  election  petition  calling  in  question  any election may be presented on one or more  of  the  grounds  specified  in  sub- section (1) of section 100 and section  101 to the High Court by any candidate  at such election or any elector within  forty-five  days  from,  but  not  earlier  than  the  date  of  election  of  the  returned candidate, or if there are more  than  one  returned  candidate  at  the  election and the dates of their election  are  different,  the  later  of  those  two  dates.

Explanation.—In  this  sub-section,  "elector"  means  a  person  who  was  entitled  to  vote  at  the  election  to  which  the  election  petition  relates,  whether he has voted at such election or  not.

1. * * * * *

[(3)  Every  election  petition  shall  be  accompanied by as many copies thereof as  there are respondents mentioned in the  petition  [***],  and  every  such  copy  shall  be  attested  by  the  petitioner  under  his  own  signature  to  be  a  true  copy of the petition.]”   

13. From  a  plain  reading  of  the  aforesaid  

provision it is evident that an election petition  

calling in question any election can be presented  

by any candidate at such election.  Candidate, in  

our opinion, would not be only such person whose  

nomination form has been accepted for scrutiny or  

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whose  name  appears  in  the  list  of  validly  

nominated candidate, that is to say, candidates  

whose nominations have been found valid.  Here,  

in the present case, the Election Petitioner’s  

plea is that the Returning Officer declined to  

accept  the  nomination  paper.   We  are  of  the  

opinion that when a nomination paper is presented  

it is the bounden duty of the Returning Officer  

to receive the nomination, peruse it, point out  

the defects, if any, and allow the candidate to  

rectify the defects and when the defects are not  

removed then alone the question of rejection of  

nomination would arise.  Any other view, in our  

opinion, will lead to grave consequences and the  

Returning Officers may start refusing to accept  

the nomination at the threshold which may ensure  

victory  to  a  particular  candidate  at  the  

election.  This is fraught with danger, difficult  

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

on a Returning Officers to satisfy himself that  

the names and the electoral roll numbers of the  

candidates and their proposers as entered in the  

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nomination paper are the same as in the electoral  

rolls  and,  therefore,  in  our  opinion,  the  

Election  Petitioner  for  the  purpose  of  

maintaining an election petition shall be deemed  

to be a candidate.

14. As  regards  failure  to  subscribe  the  

nomination  papers  by  10  electors  as  required  

under the first proviso to Section 33 of the Act,  

the plea of the Election Petitioner is that it  

was so subscribed. Whether in fact was done or  

not is a matter of trial and at this stage we  

have  to  proceed  on  an  assumption  that  the  

averments made in the election petition are true.  

There is clear averment in the election petition  

that  nomination  paper  was  subscribed  by  10  

electors.  In the face of aforesaid there is no  

escape  from  the  conclusion  that  the  Election  

Petitioner shall be deemed to be a candidate and  

entitled  to  challenge  the  election  of  the  

Returned Candidate.  

15. Now we revert to the authority of this Court  

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

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the  said  case  election  of  the  President  was  

challenged and it was found that the subsequently  

delivered  nomination  paper  filed  by  the  

petitioner of the said case was not subscribed by  

at least ten electors as proposers and at least  

ten electors as seconders as required by Section  

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

Presidential  Elections  Act,  1952  and  in  that  

background  it  was  held  that  he  was  not  a  

candidate  competent  to  present  the  petition.  

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

Election  Petitioner  has  averred  that  her  

nomination  was  subscribed  by  ten  electors  and  

that averment at this stage has to be treated as  

correct  and,  therefore,  this  distinguishes  the  

case  in  hand  from  the  case  of  Mithilesh  K.  

Sinha (supra).

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

Election  Petitioner’s  averment  was  that  his  

nomination was rejected on the untenable ground  

that he was a dummy or substitute candidate set  

up by the TDP.  However, there was no averment  

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

manner  contemplated  in  paragraph  13  of  the  

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

in his favour.  Nor did the election petition  

aver that his nomination paper was subscribed by  

ten electors.  In the face of it this Court came  

to the conclusion that the election petition was  

lacking in material facts necessary to make out a  

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

stated  earlier,  the  Election  Petitioner  has  

clearly  averred  that  his  nomination  was  

subscribed by ten electors and presented before  

the  Returning  Officer  but  the  same  was  not  

received and rejected. Thus one of the grounds  

for declaring the election to be void as provided  

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

specifically pleaded.  Thus, the decision of this  

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

no way supports the plea of the appellants.  

17. Mr.  Dushyant  Dave,  then  contends  that  the  

Election Petitioner has nowhere averred that he  

had made the deposit as required under Section 34  

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of the Act.  According to him Election Petitioner  

shall  not  be  deemed  to  be  duly  nominated  for  

election unless he deposits the amount provided  

therein.  In answer thereto Election Petitioner  

submits that the deposit as contemplated under  

Section 34 of the Act can be made till the time  

of scrutiny of the nomination. According to her  

after accepting the nomination it was the bounden  

duty of the Returning Officer to point out the  

requirement of deposit and enable the candidate  

to arrange for deposit and it is only thereafter  

if the deposit is not made, the nomination can be  

rejected.   

18. We have considered the rival submissions and  

we  find  substance  in  the  submission  of  Mrs.  

Mahesh.  We are of the opinion that there was  

still  time  left  for  presenting  the  nomination  

paper  and  in  case  the  same  would  have  been  

accepted  for  scrutiny,  the  Election  Petitioner  

could had made deposit within the time.  It is  

only after expiry of the time had the Election  

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Petitioner not made the deposit, the nomination  

was liable to be rejected.   

19. Mr. Dushyant Dave, lastly submits that the  

election petition does not contain material facts  

and on this ground alone the election petition  

deserves  to  be  rejected  at  the  threshold.  

Reliance has been placed on a decision of this  

Court in the case of  Anil Vasudev Salgaonkar v.  

Naresh Kushali Shigaonkar, (2009) 9 SCC 310 and  

our attention has been drawn to paragraph 50 of  

the judgment which reads as follows:  

“50. The  position  is  well  settled  that  an  election  petition  can  be  summarily dismissed if it does not  furnish  the  cause  of  action  in  exercise of the power under the Code  of  Civil  Procedure.  Appropriate  orders in exercise of powers under  the  Code  can  be  passed  if  the  mandatory  requirements  enjoined  by  Section 83 of the Act to incorporate  the material facts in the election  petition are not complied with.”

Yet  another  decision  on  which  reliance  is  

placed is the decision of this Court in the case  

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

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and our attention has been drawn to paragraphs 24  

and 25 of the judgment which read as follows:

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

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

20. Mrs.  Mahesh  has  taken  us  through  the  

averments made in the election petition including  

the paragraphs which we have reproduced in the  

preceding  paragraphs  of  this  judgment  and  

contends that the election petition does contain  

a concise statement of material facts on which  

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she had relied seeking the relief of declaration  

of the election of the Returned Candidate to be  

void.

21. We  have  considered  the  submission  and  the  

submission advanced by Mrs. Mahesh commend us.  

It is trite that if an Election Petitioner wants  

to  put  forth  a  plea  that  a  nomination  was  

improperly rejected to declare an election to be  

void it is necessary to set out the averments for  

making out the said ground.  The reason given by  

the Returning Officer for refusal to accept the  

nomination and the facts necessary to show that  

the refusal was improper is required to be set  

out in the election petition.  In the absence of  

the necessary averments it cannot be said that  

the election petition contains the material facts  

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

inter  alia  provides  that  an  election  petition  

shall contain a concise statement of the material  

facts.  Further, Section 87 of the Act provides  

that subject to the provisions of the Act and the  

Rules framed thereunder every election petition  

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shall be tried in accordance with the procedure  

applicable under the Code of Civil Procedure to  

the trial of suits.  Order VI of the Code of  

Civil  Procedure  is  devoted  to  the  pleadings  

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

provides  that  every  pleading  shall  contain  

statement  in  a  concise  form  all  the  material  

facts  on  which  the  party  pleading  relies  for  

claim.  In an election petition, which does not  

contain material facts, no relief can be granted.  

The  phrase  ‘material  fact’  as  used  in  Section  

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

Code of Civil Procedure  has not been defined in  

the Act or the Code of Civil Procedure.  In our  

opinion all specific and primary facts which are  

required to be proved by a party for the relief  

claimed are material facts.  It is settled legal  

position that all material facts must be pleaded  

by the party on which the relief is founded. Its  

object and purpose is to enable the contesting  

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

election petition can be summarily dismissed if  

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it does not furnish the material facts to give  

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

material facts always depend upon the facts of  

each case and no rule of universal application is  

possible to be laid down in this regard.   

22. Bearing in mind the aforesaid legal position  

when  we  proceed  to  consider  the  facts  of  the  

present  case  we  are  of  the  opinion  that  the  

Election Petitioner had disclosed material facts  

and the matter is fit to go for trial.  Whether  

those  material  facts  are  true  or  false  is  a  

matter of trial.  As regards authorities of this  

Court  in  the  case  of  Anil  Vasudev  Salgaonkar  

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

opinion that the same do not lend support to the  

contention of the appellant.  In both the cases  

this Court on fact came to the conclusion that  

the election petition did not contain statement  

of material facts and accordingly the election  

petitions  were  dismissed  at  the  threshold.  

However, in the present case, on facts we have  

found  that  the  election  petition  does  contain  

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material  facts  and  it  is  not  liable  to  be  

dismissed at the threshold.

23. Any observation made by us in this judgment  

is for the purpose of disposal of these appeals  

and shall have no bearing at the final decision  

of the election petition.

  24. Accordingly, we dismiss both the appeals with  

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

to the respondent.      

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

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

New Delhi, July 8, 2011.

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