# Satyavir Tyagi v. Shahid Manzoor

- **Citation:** (2023) 10 ILRA 356
- **Court:** High Court of Judicature at Allahabad
- **Decided:** 2023-04-06
- **Case number:** Election Petition No. 14 of 2022
- **Bench:** Rajnish Kumar
- **Source:** https://unisonlegal.in/judgment/allahabad-high-court/satyavir-tyagi-v-shahid-manzoor-49334
- **Pages:** 20

## Headnote

Sri
Tawvab
Ahmed
Khan,
Sri
Syed
Khursheed Anwar Alvi

Civil Law - Representation of the People
Act, 1951 - Sections 80, 80A, 81, 83, 86,
87, 100, 123(8) & 135A - Code of Civil
Procedure, 1908 - Order VI Rule 16, Order
VII Rule 11 - Election Petition - Material
Facts and Particulars - Corrupt Practices -
Booth Capturing - Rejection of Plaint - The
petitioner, Satyavir Tyagi, filed an election
petition under Sections 80, 80A, and 81 of the
Representation of the People Act, 1951,
challenging the election of Shahid Manzoor as a
Member of the U.P. St. Legislative Assembly
from the 46-Kithore Constituency, alleging
corrupt practices and improper vote reception.
The respondent filed an application under Order
VI Rule 16 and Order VII Rule 11 CPC to strike
10 All. Satyavir Tyagi Vs Shahid Manzoor
357
out certain pleadings and reject the petition for
lack of material facts and cause of action.

Held: (1) The respondent's application was
dismissed, and the election petition was set for
framing of issues on 02.05.2023. (2) The
petition sufficiently disclosed material facts
under
Section
83(1)(a)
regarding
alleged
corrupt
practices
(booth
capturing
under
Sections 123(8) and 135A) and improper
reception of votes (e.g., impersonation of 550
dead voters, absentee voters, and double
voting), supported by Schedule-I with voter
details. (3) Non-disclosure of certain particulars
(e.g., specific names, times, or complaints) was
not fatal at the pre-trial stage, as particulars can
be amended or amplified later, per VSS.
Achuthanandan Vs P.J. Francis and L.R.
Shivaramagowda Vs T.M. Chandrashekar. (4)
The petition complied with Sections 81, 82, and
117, and non-compliance with Section 83 is not
a ground for dismissal under Section 86, as per
Manohar Joshi Vs Nitin Bhaurao Patil and
Saritha S. Nair Vs Hibi Eden. (5) Allegations of
booth capturing at specified polling booths,
impersonation,
and
forged
Aadhar
cards
constituted material facts, and a single proven
corrupt practice could vitiate the election, per
Samant N. Balkrishna Vs George Fernandez. (6)
Challenges to the electoral roll's validity were
not permissible, but corrupt practices like
impersonation
could
be
examined,
per
Shreewant Kumar Choudhary Vs Baidyanath
Panjiar and Pramod Kumar Mishra Vs Chet
Narain Singh. (7) The court distinguished
Bondar Singh Vs Nihal Singh (tenancy law case)
and held that the petition disclosed a cause of
action, making rejection under Order VII Rule
11(a) unwarranted.

Case Law Cited:

## Text

_Characters 0–39,800 of 69,125. This is a partial read: ask again with offset=39800 for what follows._

356 INDIAN LAW REPORTS ALLAHABAD SERIES
to conclude and in that process the parties
lose their "young" days in chasing their
"cases" in different courts.

15. In view of the aforesaid
discussion, the parties, in reference to
offence under Section 138 N.I. Act read
with Section 147 of the said Act are at
liberty to compound the matter at any
stage. The complainant i.e. the person or
persons affected can pray to the court that
the accused, on compounding of the
offence may be released by invoking
jurisdiction of this Court under Section
397/401 Cr.P.C.

16. Generally, the powers available
under Section 397/401 Cr.P.C. would not
have been exercised when a statutory
remedy under the law is available, however
considering the peculiar set of facts and
circumstances it would not be in the
interest of justice to relegate the parties to
appellate court. Additionally when both the
parties have invoked the jurisdiction of this
Court and there is no bar on exercise of
powers and then the inherent powers of this
court can always be invoked for imparting
justice and bringing quietus to the issue
between the parties.

17. Accordingly, the present petition
under Section 397/401 Cr.P.C. is allowed in
terms of the compromise arrived at
between the parties to this litigation out of
court. The conviction and sentence under
Section 138 N.I. Act 1981 in Complaint
Case No. 654 of 2008 (Atul Rastogi Vs.
M/s Maci Organics Limited and Others),
under
Section
138
of
Negotiable
Instruments Act stands annulled as this
court intends, otherwise to secure the ends
of justice as provided under Section
397/401 Cr.P.C. The revisionist shall be
treated
as
acquitted
on
account
of
compounding of the offence with the
complainant/person
affected.
The
revisionist shall pay costs of Rs. 5000/-
(Rs. Five thousand Only) to the Opposite
party- State. Further, the amount of Rupees
37,500/-,
if
any
deposited
by
the
revisionist, as awarded, before the court
below while filing the appeal shall be
released in favour of opposite party no.2.
----------
(2023) 10 ILRA 356
ORIGINAL JURISDICTION
CIVIL SIDE
DATED: ALLAHABAD 06.04.2023

BEFORE

THE HON'BLE RAJNISH KUMAR, J.

Election Petition No. 14 of 2022

Satyavir Tyagi ...Petitioner
Versus
Shahid Manzoor ...Respondent

Counsel for the Petitioner:
In Person, Sri Bharat Singh Pal, Sri Satyavir
Tyagi

Counsel for the Respondent:
Sri
Tawvab
Ahmed
Khan,
Sri
Syed
Khursheed Anwar Alvi

Civil Law - Representation of the People
Act, 1951 - Sections 80, 80A, 81, 83, 86,
87, 100, 123(8) & 135A - Code of Civil
Procedure, 1908 - Order VI Rule 16, Order
VII Rule 11 - Election Petition - Material
Facts and Particulars - Corrupt Practices -
Booth Capturing - Rejection of Plaint - The
petitioner, Satyavir Tyagi, filed an election
petition under Sections 80, 80A, and 81 of the
Representation of the People Act, 1951,
challenging the election of Shahid Manzoor as a
Member of the U.P. St. Legislative Assembly
from the 46-Kithore Constituency, alleging
corrupt practices and improper vote reception.
The respondent filed an application under Order
VI Rule 16 and Order VII Rule 11 CPC to strike
10 All. Satyavir Tyagi Vs Shahid Manzoor
357
out certain pleadings and reject the petition for
lack of material facts and cause of action.

Held: (1) The respondent's application was
dismissed, and the election petition was set for
framing of issues on 02.05.2023. (2) The
petition sufficiently disclosed material facts
under
Section
83(1)(a)
regarding
alleged
corrupt
practices
(booth
capturing
under
Sections 123(8) and 135A) and improper
reception of votes (e.g., impersonation of 550
dead voters, absentee voters, and double
voting), supported by Schedule-I with voter
details. (3) Non-disclosure of certain particulars
(e.g., specific names, times, or complaints) was
not fatal at the pre-trial stage, as particulars can
be amended or amplified later, per VSS.
Achuthanandan Vs P.J. Francis and L.R.
Shivaramagowda Vs T.M. Chandrashekar. (4)
The petition complied with Sections 81, 82, and
117, and non-compliance with Section 83 is not
a ground for dismissal under Section 86, as per
Manohar Joshi Vs Nitin Bhaurao Patil and
Saritha S. Nair Vs Hibi Eden. (5) Allegations of
booth capturing at specified polling booths,
impersonation,
and
forged
Aadhar
cards
constituted material facts, and a single proven
corrupt practice could vitiate the election, per
Samant N. Balkrishna Vs George Fernandez. (6)
Challenges to the electoral roll's validity were
not permissible, but corrupt practices like
impersonation
could
be
examined,
per
Shreewant Kumar Choudhary Vs Baidyanath
Panjiar and Pramod Kumar Mishra Vs Chet
Narain Singh. (7) The court distinguished
Bondar Singh Vs Nihal Singh (tenancy law case)
and held that the petition disclosed a cause of
action, making rejection under Order VII Rule
11(a) unwarranted.

Case Law Cited:
1. Manohar Joshi Vs Nitin Bhaurao Patil, (1996)
1 SCC 169;

2. Saritha S. Nair Vs Hibi Eden, 2020 SCC
OnLine SC 1006;

3. VSS. Achuthanandan Vs P.J. Francis, (1999) 3
SCC 737;

4.
L.R.
Shivaramagowda
Vs
T.M.
Chandrashekar, (1999) 1 SCC 666;
5. Virendra Nath Gautam Vs Satpal Singh,
(2007) 3 SCC 617;

6. Samant N. Balkrishna Vs George Fernandez,
(1969) 3 SCC 238;

7. Azhar Hussain Vs Rajiv Gandhi, AIR 1986 SC
1253;

8. Dhartipakar Madan Lal Agarwal Vs Rajiv
Gandhi, AIR 1987 SC 1577;

(Delivered by Hon'ble Rajnish
Kumar, J.)

1. This Election Petition has been
filed under Sections 80, 80A/81 of the
Representation of the People Act, 1951
(hereinafter referred as the Act) by the
petitioner,
namely
Satyavir
Tyagi
challenging the election of the sole
respondent Shri Shahid Manzoor (the
returned candidate) as a Member of the
State Legislative Assembly from 46Kithore Constituency (hereinafter referred
as the Constituency) as a Member of the
U.P. State Legislative Assembly.

2.
 The
General
Elections
for
constituting new house of Legislative
Assembly
of
U.P.
State
Legislative
Assembly was notified by the Governor of
the Uttar Pradesh. As per Notification with
respect to the Constituency the following
election schedule was declared by the
Election Commission of India:-

A. Last date of nomination
.......................21.01.2022

B.
Date
for
scrutiny
of
nomination papers.......24.01.2022

C.
Date
for
withdrawal
of
candidature..........27.01.2022

D.
Date
for
poll....................................10.02.2022
358 INDIAN LAW REPORTS ALLAHABAD SERIES

E.
Date
for
counting
of
votes......................10.03.2022

F.
Date
of
declaration
of
result...... ..............10.03.2022

3. In the aforesaid election for the 46Kithore Constituency, 13 candidates had
filed nomination papers including the
petitioner
and
the
respondent.
The
petitioner had filed the nomination papers
as a candidate of the Bhartiya Janta Party
and he was allotted the symbol ''Lotus'
(Kamal). The respondent had filed the
nomination
as
a
candidate
of
the
Samajwadi Party and he was allotted the
symbol of ''Bicycle'. The voting of the
election in question took place by two
modes; one by postal ballot papers and
second
voting
by
Electronic
Voting
Machines (E.V.M.). After election and
counting of votes, the result was declared
by the Returning Officer. The petitioner
received 104924 votes and the respondent
received 107104 votes. Accordingly the
respondent
was
declared
as
elected/returned
candidate
from
the
Constituency.

4. The present Election Petition
challenging the election of the respondent
was presented before this court on
23.04.2022.
Shri
Bharat
Singh
Pal,
Advocate filed ''Vakalatnama' on behalf of
Petitioner on 23.05.2022. The notices were
issued to the respondent vide order dated
23.05.2022. In response to that the
respondent appeared and filed the written
statement on 12.07.2022. After filing of the
written statement the respondent filed an
application under Order VI Rule 16 and
Order VII Rule 11 of the Code of Civil
Procedure (hereinafter referred as CPC)
praying for striking out paragraphs 8 to 13
and paragraphs 15 to 21 of the petition and
reject/dismiss the petition under Order VII
Rule 11(a) of CPC with a prayer to pass
such other and further order or direction as
this Court may deem fit and proper in the
circumstances of the case. The petitioner
filed the counter affidavit to the said
application and replication to the written
statement filed by the respondent/applicant.
The respondent filed the rejoinder affidavit
to the counter affidavit filed by the
petitioner against the application under
Order VI Rule 16 and Order VII rule 11
CPC.

5.

Learned
counsel
for
the
respondent/applicant submitted that the
Election Petition has been filed with
unnecessary,
frivolous
and
vexatious
pleadings without disclosing the material
facts and particulars of corrupt practices
alleged to have been committed by the
respondent/applicant. The Petition does not
contain material facts and particulars of
alleged corrupt practices committed by the
respondent/applicant as provided under
Section 83(b) of the Act. The pleadings are
vague
and
based
on
surmises
and
conjectures, which are liable to be struck
out under Order VI Rule 16 CPC. On
striking out the said pleadings, the plaint
does not contain any cause of action,
therefore it is liable to be rejected.

6.

He
further
submitted
that
particulars of persons as to who have
captured the booth with time and place etc.
of booth capturing have not been disclosed.
The complaints made to the officers has
also not been disclosed. Whereas the
particulars are required to be given in the
plaint because the evidence can be adduced
in support thereof. Only general allegations
have been made, which does not form the
''material facts' and ''particulars'. He further
submitted that the names of witnesses have
not been disclosed in whose presence the
10 All. Satyavir Tyagi Vs Shahid Manzoor
359
booths were captured. The specific names
of the dead voters, election agents etc. have
not been given. The names of the
officers/officials, who have not allowed to
vote have not been disclosed.

7. He further submitted that only
vague averments have been made that
wrong persons have been included in the
voter list, whereas this plea cannot be taken
in the Election Petition and opportunity of
appeal is provided for it under Section 24
of the Act. If the names of the wrong
persons were included in the voter list the
appropriate course was either to seek
correction or file an appeal, which remedy
has not been availed. The electoral roll
once published is final. The petitioner
should have shown particular voters and
the same should have been challenged but
it has not been done.

8. On the basis of above learned
counsel
for
the
respondent/applicant
submitted that the Election Petition has
been filed on the basis of vague pleas,
unnecessary
and
vexatious
allegation,
conjectures and surmises, which are liable
to be struck out under Order VI Rule 16.
Consequently no cause of action would
survive to file the Election Petition.
Therefore the application is liable to be
allowed and the Petition is liable to be
rejected at the threshold under Order VII
Rule 11 CPC. Learned counsel for the
respondent/applicant
relied
on
Azhar
Hussain Versus Rajiv Gandhi; AIR1986
SC
1253,
Rajasthan
State
TPT
Corporation and others Versus Bajrang
Lal; AIR SCW 2058/(2014) 4 SCC 693,
D.M.Deshpande
and
others
Versus
Janardhan Kashinath Kadam (Dead) by
Lrs. And others; (1998) 8 SCC 315,
Bondar Singh and others Versus Nihal
Singh and others; (2003) 4 SCC 161,
Dhartipakar Madan Lal Agarwal Versus
Shri Rajiv Gandhi; AIR 1987 SC 1577,
Ajay Rai and another Versus Narendra
Modi; 2017 (1) ADJ 338, Rampakavi
Rayappa Belagali Versus D.B.Jatti and
others; AIR 1971 SC 1348/1970 3 SCC
147,
Shreewant
Kumar
Choudhary
Versus Baidyanath Panjiar; AIR 1973
SC 717/(1973) 1 SCC 95, Pramod Kumar
Mishra Versus Chet Narain Singh; 2017
Law Suit All.1677/MANU/UP/2383/2017
AND Laxmi Kant Bajpai Versus Hazi
Yaqoob and others; (2010) 4 SCC 81.

9. Learned counsel for the petitioner
submitted that the application has been
filed
on
misconceived
and
baseless
grounds. There is no address on the
application and no ground under Order VI
Rule 16 CPC has been shown. The Petition
has been filed with ''material facts'
necessary for filing of the Election Petition.
The petitioner has complied the provisions
of Section 81, 82 and 117 of the Act as well
as Rule 5 of Chapter 15-A of the Allahabad
High Court Rules. The provisions of
Section 86 have also been complied, the
compliance of which can be seen at the
stage of pre-issuance of notice and once the
notice was issued on 23.05.2022 the
compliance of Section 86 does not arise.
He further submitted that the application
has been filed under Order VII Rule 11
CPC, but it has not been filed under Section
83(1) of the Act. The grounds of surmises
and conjectures taken for striking out the
pleadings are not the grounds mentioned
under Order VI Rule 16 CPC, therefore the
pleadings cannot be struck out.

10. He further submitted that Order
VII Rule 11 CPC is the substantive
provision. The application moved under the
said provision, without referring any
provision of the Act, is not maintainable
360 INDIAN LAW REPORTS ALLAHABAD SERIES
and is liable to be rejected. The Petition has
been filed under Section 80, 80A and 81 of
the Act. The Election Petition can be filed
by the candidate or elector. The petitioner
was indisputably a candidate under Section
79(b) of the Act and Rule 28 (a) of the
Conduct of Election Rules 1961 in the
election in question, therefore he has locus
to file the Election Petition and he has a
right to sue/challenge the election, thus
there is a cause of action to him to
challenge election under Section 100 of the
Act. The grounds No.(A) and (B) are
covered under Section 100(1)(b) of the Act
and the ground No.(C) is covered under
Section 100(1)(d)(iii) of the Act. He further
submitted
that
concise
statement
of
material facts in regard to the ground
Nos.(A) and (B) regarding corrupt practices
have been given in paragraphs 7 to 13 of
the petition and in regard to the ground
No.(C) and (D) in paragraphs 14 to 21 of
petition.

11. He further submitted that the
election of the respondent is also vitiated
on account of improper reception of votes
and reception of votes, which are void as
disclosed in paragraphs 14 and 15 and
particular names have been given in
schedule-I. He further submitted that the
petitioner and his agents had informed to
the Returning Officer about the corrupt
practices which were being committed by
the respondent and his agents, but he failed
to take any action on it.

12. On the basis of above, learned
counsel for the petitioner submitted that the
petitioner has given the material facts in the
Petition clearly disclosing the cause of
action. The particulars, if any, required for
those material facts can be supplied
subsequently, therefore the pleas taken by
the respondent/applicant are misconceived
and not tenable. He also submitted that the
respondent/applicant has relied some cases
of the Tenancy Law, which are not
applicable on the present case because
Election Petition is governed by the
statutory provisions and concise statement
of the material facts as required under
Section 83(1)(a) of the Act have been given
in the Petition. Thus the application filed by
the respondent/applicant is misconceived
and not tenable and is liable to be
dismissed and the Election Petition is liable
to put on trial. Learned counsel for the
petitioner relied on Manohar Joshi Versus
Nitin Bhaurao Patil and another; (1996)
1 SCC 169, Saritha S. Nair Versus Hibi
Eden; 2020 SCC OnLIne SC 1006,
Neelam Sonkar Versus Dr.Bali Ram;
2011 (11) ADJ 341, Virendra Nath
Gautam Versus Satpal Singh and others;
(2007) 3 SCC 617 AND Samant N.
Balkrishna and another Versus George
Fernandez and others; 1969 (3) SCC 238.

13. In the rejoinder, learned counsel
for the respondent/applicant submitted that
the petitioner or his agents have never
informed to the Returning Officer about the
alleged corrupt practices. He has also not
filed copy of any application or complaint
and no details have been given in the
petition. He further submitted that all the
candidates have got votes as is being
reflected in the schedule filed by the
petitioner and if there was booth capturing
the NOTA would not have been exercised
by the voters. There were 1000 and odd
Polling Stations and the petitioner has
failed to give the details of the specific
Polling Stations. He also submits that
merely on the basis of the higher number of
votes in favour of the respondent cannot be
a ground of booth capturing because in
some Polling Stations the petitioner has
also got the higher number of votes, it is
10 All. Satyavir Tyagi Vs Shahid Manzoor
361
only because of the followers of the
candidate concerned in the concerned
Polling Station. He also submitted that the
details of the voters with proof of their
being in the foreign country or out on
account of marriage etc. have not been
furnished. Therefore the material facts have
not been given in the Petition, which may
disclose the cause of action. Thus the
application is liable to be allowed and the
Petition is liable to be rejected.

14. Heard, Shri Anil Kishore Sharma,
learned Senior Advocate assisted by Shri
Syed Khursheed Anwar Alvi, learned
counsel for the respondent/applicant and
Shri Bharat Singh Pal, learned counsel for
the Petitioner and perused the material
placed before me on record.

15. The application under Order VI
Rule 16 and Order VII Rule 11 CPC has
been filed on the following grounds:-

(i) The Election Petition does not
contain any material facts or particulars and
the allegations made in the petition are
vague and general and are lacking requisite
facts, details and particulars of the corrupt
practices as alleged.

(ii) The Election Petition does not
set forth any particulars of the alleged
corrupt
practices
committed
by
the
applicant
as
provided
under
Section
83(1)(b) of the Act and the pleas are
unnecessary and vexatious and based on
surmises and conjectures and are liable to
be struck out in accordance with Order VI
Rule 16 CPC because the contents of the
Election
Petition
are
unnecessarily
scandalizes and do not provide any
particulars of corrupt practices alleged to
be committed by the applicant.

(iii) The contents of Election
Petition are not in accordance with the
mandatory provisions contained in Section
83 of the Act, therefore, they are liable to
be struck out and if such paragraphs are
struck out from the Petition no cause of
action survives for continuation of Election
Petition and Petition deserves to be rejected
in accordance with Order VII Rule 11 (a)
CPC read with Section 86 of the Act.

16. The Election Petition has been
filed under Section 80, 80A and 81 of the
Act. Section 80 provides that no election
shall be called in question except by an
election petition presented in accordance
with the provisions of this part. Section
80A provides about the trial of the Election
Petition by the High Court by a Single
Bench and nomination of Bench by Hon'ble
the Chief Justice. Section 81 provides
presentation of the petitions, which is
extracted here-in-below:-

"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 3 [subsection (1)] of section 100 and section 101
to the 4 [High Court] by any candidate at
such election or any elector 5 [within fortyfive 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.

[...............]

[(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
362 INDIAN LAW REPORTS ALLAHABAD SERIES
attested by the petitioner under his own
signature to be a true copy of the petition."

17. Section 87 of the Act provides the
procedure before the High Court. Sub
Section (1) lays down that subject to the
provisions of the Act and of any rules made
thereunder, every election petition shall be
tried by the High Court, as nearly as may
be, in accordance with the procedure
applicable under the CPC to the trial of
suits. Sub Section (2) provides the
provisions of the Indian Evidence Act 1872
(1 of 1872), shall subject to the provisions
of the Act, be deemed to apply in all
respects to the trial of an election petition.

18. Order VI, Rule 16, and its other
sub- rules deal with the pleadings generally.
The relevant Rules 2, 4, 6 and 16, relevant
for the present case, are reproduced herein-below:-

"2. Pleading to state material
facts
and
not
evidence.--(1)
Every
pleading shall contain, and contain only, a
statement in a concise form of the material
facts on which the party pleading relies for
his claim or defence, as the case may be,
but not the evidence by which they are to
be proved.

(2) Every pleading shall, when
necessary, be divided into paragraphs,
numbered consecutively, each allegation
being, so far as is convenient, contained in
a separate paragraph.

(3) Dates, sums and numbers
shall be expressed in a pleading in figures
as well as in words.

4. Particulars to be given where
necessary.--In all cases in which the party
pleading relies on any misrepresentation,
fraud, breach of trust, wilful default, or
undue influence, and in all other cases in
which particulars may be necessary beyond
such as are exemplified in the forms
aforesaid, particulars (with dates and items
if necessary) shall be stated in the pleading.

6. Condition precedent. --Any
condition precedent, the performance or
occurrence of which is intended to be
contested, shall be distinctly specified in
his pleading by the plaintiff or defendent,
as the case may be; and, subject thereto, an
averment of the performance or occurrence
of all conditions precedent necessary for
the case of the plaintiff or defendant shall
be implied in his pleading.

16. Striking out pleadings.--The
Court may at any stage of the proceedings
order to be struck out or amended any
matter in any pleading-- (a) which may be
unnecessary,
scandalous,
frivolous
or
vexatious, of (b) which may tend to
prejudice, embarrass or delay the fair trail
of the suit, or (c) which is otherwise an
abuse of the process of the Court.]"

19. The Act lays down similar
provisions, regarding facts to be pleaded,
under Section 83 of the Act, which reads as
under:-

"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:
10 All. Satyavir Tyagi Vs Shahid Manzoor
363

[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.]"

20. Section 86 of the Act provides
trial of election petition. Sub-section (1)
provides dismissal of election petition on
account
of
non
compliance
of
the
provisions of Section 81 or Section 82 or
Section 117. Sub-section (5) provides that
''the High Court may, upon such terms as to
costs and otherwise as it may deem fit,
allow the particulars of any corrupt practice
alleged in the petition to be amended or
amplified in such manner as may in its
opinion be necessary for ensuring a fair and
effective trial of the petition, but shall not
allow any amendment of the petition which
will have the effect of introducing
particulars of a corrupt practice not
previously alleged in the petition.'

21. Learned counsel for the petitioner
has relied on the judgment of Hon'ble
Supreme Court in the case of Manohar
Joshi Versus Nitin Bhaurao Patil and
another (Supra) in which the Supreme
Court has held that the compliance of
Sections 81, 82 and 117 is to be seen with
reference to the evident facts found in the
election petition and the documents filed
along with it at the time of its presentation.
This is a ministerial act. There is no scope
for any further inquiry for the purpose of
Section 86 to ascertain the deficiency, if
any, in the election petition found with
reference to the requirements of Section 83
of the Act which is a judicial function. For
this reason, the non-compliance of Section
83, is not specified as a ground for
dismissal of the election petition under
Section 86. Similar view has been taken by
the Supreme Court in the case of Saritha
S.Nair Versus Hibi Eden (Supra) and it
has been held that the reference in the
Explanation under Section 86(1) to Section
98(a), makes it clear that the power of the
High Court to dismiss an election petition
which does not comply with the provisions
of Section 81 or Section 82 or Section 117,
is available at the pre-trial stage.

22. Section 83 of the Act also
provides 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
allegations of such corrupt practice and the
particulars thereof.

23. Order VII Rule 11 CPC provides
that the plaint shall be rejected in the given
cases. In the instant case the first is
relevant, which provides ''where it does not
disclose a cause of action'. The cause of
action has not been defined anywhere, but
it has been interpreted in a number of
decisions as bundle of facts which if proved
would entitle a party to the relief claimed.

24. The Hon'ble Supreme Court in the
case of A.B.C.Laminart Pvt. Ltd. and
Ors. Versus A.P. Agencies, Salem; (1989)
2 SCC 163/MANU/SC/0001/1989 has
explained the meaning of "cause of action"
in paragraph 12, which is as follows:-

"12. A cause of action means
every fact, which, if traversed, it would be
necessary for the plaintiff to prove in order
to support his right to a judgment of the
Court. In other words, it is a bundle of facts
which taken with the law applicable to
364 INDIAN LAW REPORTS ALLAHABAD SERIES
them gives the plaintiff a fight to relief
against the defendant. It must include some
act done by the defendant since in the
absence of such an act no cause of action
can possibly accrue. It is not limited to the
actual infringement of the fight sued on but
includes all the material facts on which it is
founded. It does not comprise evidence
necessary to prove such facts, but every
fact necessary for the plaintiff to prove to
enable him to obtain a decree. Everything
which if not proved would give the
defendant a fight to immediate judgment
must be part of the cause of action. But it
has no relation whatever to the defence
which may be set up by the defendant nor
does it depend upon the character of the
relief prayed for by the plaintiff."

25. The main grounds of filing the
application under Order VI Rule 16 and
Order VII Rule 11 CPC read with Section
86 of the Act is that the Election Petition
does not contain any ''material facts' or
''particulars' and the allegations made in the
Petition are vague and general regarding
corrupt practices and based on surmises
and
conjectures,
therefore,
they
are
unnecessary and vexatious and liable to be
struck out and if the said pleadings are
struck out, no cause of action survives for
continuation of election petition and it is
liable to be rejected Under Order VII Rule
11(a) CPC.

26. A bare reading of the aforesaid
provisions in regard to the pleadings shows
that the requirement under the Act as well
as CPC is that the Petition must contain the
concise statement of the ''material facts' on
which the reliance is being placed and full
particulars of any corrupt practice including
statements and as far as possible names of
the parties who have committed corrupt
practices and date, place and commission
of such corrupt practice. However the
particulars of any corrupt practice alleged
in the petition may be amended or
amplified for a fair and effective trial. The
meaning of concise as defined in Oxford
Dictionary is ''giving a lot of information in
a few words; brief'. The words ''material
facts' have not been defined either under
the Act or in CPC. However the same has
been subject matter of scrutiny in large
number of decisions of various High Courts
including this High Court and the Supreme
Court. The words ''material facts' may be
said to be those facts upon which the
plaintiff's cause of action or the defendant's
defence depends. The particulars which
may be said to be the ''material facts' would
depend upon the facts of each case and no
rule of universal application can be laid
down. However it would be essential that
all basic and primary facts which must be
proved at the trial by the parties to establish
the existence of a cause of action or
defence must be stated in the pleadings.
The word ''particulars' has also been
considered and interpretted by this court as
well as by the Supreme Court in various
decisions. All the details which are
necessary to amplify, rely and embellish the
material facts are ''particulars'. However the
particulars in support of material facts
given in the petition can be amended and
amplified

27. The Hon'ble Supreme Court, in
the case of Dhartipakar Madan Lal
Agarwal Versus Shri Rajiv Gandhi
(Supra), has held that right to contest
election or to question the election by
means of Election Petition is neither
common law nor fundamental right instead
it is statutory right related to the statutory
provisions of the Act. Thus the legal
position is that out side the statutory
provisions, there is no right to dispute the
10 All. Satyavir Tyagi Vs Shahid Manzoor
365
election. The Act is a complete and self
contained
Code
within
which
rights
claimed in relation to an election or an
election dispute must be found and the
provisions of CPC are applicable to the
extent as permissible by Section 87 of the
Act. It has also been held that the trial of
the election petition can not proceed for
want of cause of action. The relevant
paragraph 14 is extracted here-in-below:-

"14. Before we consider various
paragraphs of the election petition to
determine the correctness of the High Court
order we think it necessary to bear in mind
the nature of the right to elect, the right to
be elected and the right to dispute election
and the trial of the election petition. Right
to contest election or to question the
election by means of an election petition is
neither common law nor fundamental right,
instead it is a statutory right regulated by
the
statutory
provisions
of
the
Representation of People Act, 1951. There
is no fundamental or common law right in
these matters. This is well settled by a
catena of decisions of this Court in N.P.
Ponnuswami v. Returning Officer [(1952) 1
SCC 94 : AIR 1952 SC 64 : 1952 SCR 218
: 1 ELR 133] , Jagan Nath v. Jaswant Singh
[AIR 1954 SC 210 : 1954 SCR 892 : 9
ELR 231] , Jyoti Basu v. Debi Ghosal
[(1982) 1 SCC 691 : AIR 1982 SC 983 :
(1982) 3 SCR 318] . These decisions have
settled the legal position that outside the
statutory provisions there is no right to
dispute an election. The Representation of
People Act is a complete and self-contained
Code within which any rights claimed in
relation to an election or an election dispute
must be found. The provisions of the Civil
Procedure Code are applicable to the extent
as permissible by Section 87 of the Act.
The scheme of the Act as noticed earlier
would show that an election can be
questioned under the statute as provided by
Section 80 on the grounds as contained in
Section 100 of the Act. Section 83 lays
down a mandatory provision in providing
that an election petition shall contain a
concise statement of material facts and set
forth full particulars of corrupt practice.
The pleadings are regulated by Section 83
and it makes it obligatory on the election
petitioner to give the requisite facts, details
and particulars of each corrupt practice
with exactitude. If the election petition fails
to make out a ground under Section 100 of
the Act it must fail at the threshold.
Allegations of corrupt practice are in the
nature of criminal charges, it is necessary
that there should be no vagueness in the
allegations so that the returned candidate
may know the case he has to meet. If the
allegations are vague and general and the
particulars of corrupt practice are not stated
in the pleadings, the trial of the election
petition cannot proceed for want of cause
of action. The emphasis of law is to avoid a
fishing and roving inquiry. It is therefore
necessary for the Court to scrutinise the
pleadings relating to corrupt practice in a
strict manner"

28. The Hon'ble Supreme Court, in
the case of Azhar Hussain Versus Rajiv
Gandhi (Supra), has held that all the
primary facts which must be proved by a
party to establish the cause of action or
defence are material facts and failure to
plead even a single material fact would
amount to disobedience of the mandate to
Section 83(1)(a) of the Act. The relevant
paragraph 11 is extracted here-in-below:-

"11.In
view
of
this
pronouncement there is no escape from the
conclusion that an election petition can be
summarily dismissed if it does not furnish
cause of action in exercise of the powers
366 INDIAN LAW REPORTS ALLAHABAD SERIES
under the Code of Civil Procedure. So also
it emerges from the aforesaid decision that
appropriate orders in exercise of powers
under the Code of Civil Procedure 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.
This Court in Samant case [Samant N.
Balkrishna v. George Fernandez(1969) 3
SCC 238] has expressed itself in no unclear
terms that the omission of a single material
fact would lead to an incomplete cause of
action and that an election petition without
the material facts relating to a corrupt
practice is not an election petition at all. So
also in Udhav Singh case [Udhav Singh v.
Madhav Rao Scindia(1977) 1 SCC 511] the
law has been enunciated that all the
primary facts which must be proved by a
party to establish a cause of action or his
defence are material facts. In the context of
a charge of corrupt practice it would mean
that the basic facts which constitute the
ingredients
of
the
particular
corrupt
practice alleged by the petitioner must be
specified in order to succeed on the charge.
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. All the facts which are essential
to clothe the petition with complete cause
of action must be pleaded and failure to
plead even a single material fact would
amount to disobedience of the mandate of
Section 83(1)(a). An election petition
therefore can be and must be dismissed if it
suffers from any such vice. The first ground
of challenge must therefore fail."

29. A three Judges Bench of Hon'ble
Supreme
Court,
in
the
case
of
V.S.Achuthanandan Versus PJ.Francis
and another; (1999) 3 SCC 737, has
considered the effect of non disclosure of
the "material facts and full particulars" in
the petition and held that failure to plead a
material fact is fatal to the Election Petition
but the absence of material particulars can
be cured at later stage by an appropriate
amendment and the Election Petition is not
liable to be dismissed in limine merely
because full particulars of corrupt practices
alleged were not set out. The relevant
paragraph 15 is extracted here-in-below:-

"15. It would thus appear that the
election petition was rejected mainly on the
ground that it did not disclose the cause of
action as according to the learned trial
Judge the allegations regarding corrupt
practice were vague and did not disclose
"material facts and full particulars" of the
corrupt practice alleged. It is evident that
the learned trial Judge did not distinguish
between the "material facts" and the
"material
particulars"
of
allegations
regarding corrupt practices as defined
under Section 123 of the Act. The law on
the point is well settled which appears to
have not been taken note of or appreciated
by the learned trial Judge. After referring to
various pronouncements of this Court
including cases in Balwan Singh v.
Lakshmi Narain [AIR 1960 SC 770 :
(1960) 3 SCR 91] , Samant N. Balkrishna v.
George Fernandez [(1969) 3 SCC 238] ,
Virendra Kumar Saklecha v. Jagjiwan
[(1972) 1 SCC 826] , Udhav Singh v.
Madhav Rao Scindia [(1977) 1 SCC 511] ,
F.A. Sapa v. Singora [(1991) 3 SCC 375]
and Gajanan Krishnaji Bapat v. Dattaji
Raghobaji Meghe [(1995) 5 SCC 347] and
a host of other authorities, this Court in
L.R.
Shivaramagowda
v.
T.M.
Chandrashekar [(1999) 1 SCC 666 : (1998)
6 Scale 361] held that while failure to plead
"material facts" is fatal to the election
petition and no amendment of the pleading
10 All. Satyavir Tyagi Vs Shahid Manzoor
367
is permissible to introduce such material
facts after the time-limit prescribed for
filing the election petition, the absence of
"material particulars" can be cured at a later
stage by an appropriate amendment. 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. In Udhav Singh case [(1977) 1 SCC
511] the Court held: (SCC p. 523, paras 42-43)

"In short, all those facts which are
essential to clothe the petitioner with a
complete cause of action, are ''material facts'
which must be pleaded, and failure to plead
even a single material fact amounts to
disobedience of the mandate of Section
83(1)(a).

''Particulars', on the other hand, are
''the details of the case set up by the party'.
''Material particulars' within the contemplation
of clause (b) of Section 83(1) would therefore
mean all the details which are necessary to
amplify, refine and embellish the material facts
already pleaded in the petition in compliance
with
the
requirements
of
clause
(a).
''Particulars' serve the purpose of finishing
touches to the basic contours of a picture
already drawn, to make it full, more detailed
and more informative."

30.