# AlHAR RUSS\IN v. RAJIV G\Nllll APR_IL_ 25, 1986

- **Citation:** [1986] 2 S.C.R. 782
- **Court:** Supreme Court of India
- **Decided:** 1986
- **Case number:** Election Petition No. 2 of 1985
- **Bench:** E.S. VENK<\.'t<\.R<\, M.P. 'Il!AKKAR
- **Source:** https://unisonlegal.in/judgment/supreme-court-of-india/alhar-russ-in-v-rajiv-g-nllll-apr-il-25-1986-9294
- **Pages:** 41

## Headnote

Representation of the People Act, 1951 :
Section 80 to 83,
86
& 87
-
Election Petition -
Mandatory
requirerent
to
furnish
nnterial
facts
and
particulars -
Non compliance -
Summary dismissal of election
petition - What are nnterial particulars to be incorporated in ~Jill.
an Election Petition.
.
I
H
Civil Procedure Code, 1908 - Order 6 Rule 16 and Order 7 -
Rule ll(a) - Election Petition - Applicability of.
The respondent having secured the highest votes in the
1984 general eiections was declared elected as a Member of the
Lok Sabha from -the Amethi Constituency of Uttar Pradesh. Ot\
the last date for challenging the election, the appellant, an
elector from that constituency filed an election petition"-
challenging the election of the respondent alleging various
corrupt practices. The respondent upon being served, instead
of filing a written statement, raised preliminary objection
to the maintainability of the petition contending that the
petition was lacking in material facts and particulars and was
defective on that account, and that since it did not disclose -t
any cause of action it deserved to be dismissed.
The High Court upheld the preliminary objection of the -+-.-
respondent and dismissed the petition.
\
In _the appeal to this Court on behalf of the appellant
it wa11 contended : ( 1) that where the legislature wanted to
provide for summry dismissal of the election petition-,
the
legislature has spoken on the matter and that the
intention
was to provide for sW111Bry dismissal only in case of failure +
to comply with the requiremant of sections 81, 82 and 117 and
not section 83; (2) that the powers to reject an election
petition sU1J11Brily under_the provisions of the Code of Civil
.
~
t
AZHAR HUSSAIN v. RAJIV GANDHI
783
Procedure should not be exercised at the threshold, and that
the Court IDlSt proceed with the trial, record the evidence,
and only after the trial of the election petition is concluded
that the powers under the Code of Civil Procedure for dealing
with the defective petition which does not disclose cause of
action should be exercised.
Dismissing the appeal,
llKLD : l. The results of an election are subject to
judicial scrutiny and control only with an eye on two ends.
First, to ascertain that the 'true' will of the people is
reflected in the results and second, to secure that only the
persons who are ·eligible and qualified under the Constitution
obtain the representation. In order that the "true Will" is
asce.rtained the Courts will step in to protect and safeguard
the purity of Elections, for, _if corrupt practices have
influenced the result, or the electorate has ~en a victim of
fraud or deception or compulsion on any essential matter, the
will of the people as recorded in their votes is not the 'free
and true' will exercised intelligently by deliberate choice.
It is not the will of the people in the true sense at all. And
the Courts would, therefore, be justified in setting aside the
election in accordance with the law if the corrupt practices
are established. So also when the essential qualifications for
eligibility demanded by the constitutional requirement are not
fulfilled, the fact that the successful candidate is the true
choice of the people is a consideration which is totally
irrelevant notwithstanding the fact that it would be virtually
impossible to re-enact the elections· and reascertain the
wishes of the people at the fresh elections, the time scenario
having changed. (788 B-F]
1.1 In matters of election the will of the people IDlSt
prevail and Gour.ts. would be understandably extremely slow to
set at naught the will of the people truely and freely
exercised. If Courts were to do otherwise, the Courts would be
pitting their will against the . will of the people, or
countermanding the choice of the people without any object,
aim or purpose. But where corrupt practices are_established
the result of the election does not echo the true voice of the
people. The Courts would not then be deterred

## Text

_Characters 0–39,837 of 84,889. This is a partial read: ask again with offset=39837 for what follows._

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AlHAR RUSS\IN
v.
RAJIV G\Nllll
APR_IL_ 25, 1986
[E.S. VENK<\.'t<\.R<\.Mr&q AND M.P. 'Il!AKKAR, JJ.]
Representation of the People Act, 1951 :
Section 80 to 83,
86
& 87
-
Election Petition -
Mandatory
requirerent
to
furnish
nnterial
facts
and
particulars -
Non compliance -
Summary dismissal of election
petition - What are nnterial particulars to be incorporated in ~Jill.
an Election Petition.
.
I
H
Civil Procedure Code, 1908 - Order 6 Rule 16 and Order 7 -
Rule ll(a) - Election Petition - Applicability of.
The respondent having secured the highest votes in the
1984 general eiections was declared elected as a Member of the
Lok Sabha from -the Amethi Constituency of Uttar Pradesh. Ot\
the last date for challenging the election, the appellant, an
elector from that constituency filed an election petition"-
challenging the election of the respondent alleging various
corrupt practices. The respondent upon being served, instead
of filing a written statement, raised preliminary objection
to the maintainability of the petition contending that the
petition was lacking in material facts and particulars and was
defective on that account, and that since it did not disclose -t
any cause of action it deserved to be dismissed.
The High Court upheld the preliminary objection of the -+-.-
respondent and dismissed the petition.
\
In _the appeal to this Court on behalf of the appellant
it wa11 contended : ( 1) that where the legislature wanted to
provide for summry dismissal of the election petition-,
the
legislature has spoken on the matter and that the
intention
was to provide for sW111Bry dismissal only in case of failure +
to comply with the requiremant of sections 81, 82 and 117 and
not section 83; (2) that the powers to reject an election
petition sU1J11Brily under_the provisions of the Code of Civil
.
~
t
AZHAR HUSSAIN v. RAJIV GANDHI
783
Procedure should not be exercised at the threshold, and that
the Court IDlSt proceed with the trial, record the evidence,
and only after the trial of the election petition is concluded
that the powers under the Code of Civil Procedure for dealing
with the defective petition which does not disclose cause of
action should be exercised.
Dismissing the appeal,
llKLD : l. The results of an election are subject to
judicial scrutiny and control only with an eye on two ends.
First, to ascertain that the 'true' will of the people is
reflected in the results and second, to secure that only the
persons who are ·eligible and qualified under the Constitution
obtain the representation. In order that the "true Will" is
asce.rtained the Courts will step in to protect and safeguard
the purity of Elections, for, _if corrupt practices have
influenced the result, or the electorate has ~en a victim of
fraud or deception or compulsion on any essential matter, the
will of the people as recorded in their votes is not the 'free
and true' will exercised intelligently by deliberate choice.
It is not the will of the people in the true sense at all. And
the Courts would, therefore, be justified in setting aside the
election in accordance with the law if the corrupt practices
are established. So also when the essential qualifications for
eligibility demanded by the constitutional requirement are not
fulfilled, the fact that the successful candidate is the true
choice of the people is a consideration which is totally
irrelevant notwithstanding the fact that it would be virtually
impossible to re-enact the elections· and reascertain the
wishes of the people at the fresh elections, the time scenario
having changed. (788 B-F]
1.1 In matters of election the will of the people IDlSt
prevail and Gour.ts. would be understandably extremely slow to
set at naught the will of the people truely and freely
exercised. If Courts were to do otherwise, the Courts would be
pitting their will against the . will of the people, or
countermanding the choice of the people without any object,
aim or purpose. But where corrupt practices are_established
the result of the election does not echo the true voice of the
people. The Courts would not then be deterred by the aforesaid
considerations
which
in
the
corruptior-scenario
lose
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784
SUPREME COURT REPORTS
(1986] 2 s.c.R.
relevance. Such would be the
approach of the Court in an,
election matter where a corrupt practice is established. ~
(788 F-H; 789 A]
2. Undisputedly, the Code of Civil Procedure applies to
the trial of an election petition by virtue of section 87 of
the Representation of People Act of 1951, and so the Court
trying the election petition can act in exercise of the powers
of the Code including Order 6, Rules 16 and Order 7, Rule+
ll(a). The fact that a reference to section 83 does not find a
place in section 86 of the Act does not mean that power under
the Civil Procedure Code cannot be exercised. (792 D-E; 793 Fl
3. An election petition can be summarily dismissed if it
does not furnish cause of action in exercise of the powers
under the Code of Civil Procedure. So also appropriate orders ~
in exercise of powers under the Code of Civil Procedure can ,
be passed if the mandatory requirement enjoined by section 83/'
of the Act to incorporate the material facts in the election •,
petition are not complied with. (794 F-H]
3.1 Even in an ordinary Civil litigation the Court
readily exercises the power to reject a plaint if it does not
disclose any cause of action, or the power to direct the _.
concerned party to strike
out
unnecessary,
scandalous,
frivolous or vexatious parts of the pleadings. Or such pleadings which are likely to cause embarassment or delay the fair
trial of the action or which is otherwise an abuse of the
process of law. An order directing a party to strike out a
part of the pleading would result in the termination of the -;
case arising in the context of said pleading. The Courts in
exercise of the powers under the Code of Civil Procedure can
also treat any point going to the root of the matter such as
one
pertaining to jurisdiction or maintainability as a
preliminary point and can dismiss a suit without proceeding to
record evidence and hear elaborate arguments in the context of
such evidence, if the Court is satisfied that the action would
terminate in view of the merits of the preliminary point of
objection. Such being the position in regard to matters pertaining to ordinary Civil litigation, there is greater reason ,.
why in a democratic set-up, in regard to a matter pertaining
to an elected representative of the people which is likely to
inhibit him in the discharge of his duties towards the Nation,
the controversy is set at rest at the earliest if the facts of
the case and the law so warrant. (795 H; 796 A-<:; 797 D-E]
AZHAR IIDSSAIN v. RAJIV GANDHI
785
3.2 Since the Court has the power to act at the
threshold, the powers 1111st be exercised at the threshold
itself in case the Court is satisfied that it is a fit case
for the exercise of such power and that exercise of such power
is warranted under the relevant provision of law. [797 E-F)
4, All the primary facts which 1111st be proved by a party
to establish a cause of action or his def,ence are material
~ ~ facts. The omission of a single material fact would lead to an
incomplete cause of action and an election petition without
the material facts relating to a corrupt practice is not an
election petition at all. [795 B-C; A-B)
+
4.1 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 charges levelled and the
circW1Btances of the case. All the facts which are essential
to clothe the petition with complete cause of action 1111st be
pleaded and f9ilure to plead even a single material fact would
amJUllt to disobedience of the mandate of s. 83(1 )(a). An
election petition, therefore, can be and 1111st be dismissed if
it suffers from any such vice. [795 C-D)
Bardvarl Lal v. ltamnll Singh,
[19721 2 s.c.R. 742,
Swnt w. llelkrislma & Anr. v. George Fernandez & Ors., [1969)
3 s.c.c. 239, Udbav
Singh v. ltadhav Rao Scindia Popatlal
Mmd.lal Joshi & Ors., [1969) 3 s.c.R. 217, relied upon.
5. The pleading in regard to matters where
there is
scope for ascribing an alleged corrupt practice to a returned
candidate in the context of a meeting of which dates and
particulars are not given would tantamount to failure to
incorporate the essential particulars. And inas1111ch as there
was a possibility that witnesses could be procured in the
context of ·a meeting at a place or date convenient for adducing evidence, the High Court should not even have permitted
evidence on that point. No amount of evidence could cure the
basic defect in the pleading and the pleading as it stood 1111st
be construed as one disclosing no cause of action. [806 E-G)
Ribar Singh v. Rao Birendra Singh, [1970] 3 s.c.c. 239,
relied upon.
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786
SUPREME COURT REPORTS
[1986] 2 S,C.R.
6. In the instant case, on a scrutiny of the averment\-
made in the Election Petition it is evident that it is not
pleaded as to who had distributed the pamphlets, when they
were distributed, where they were distributed, to whom they
were distributed, and in whose presence they were distributed,
nte pleading is ominously silent on these aspects. It has not
even been pleaded that any particular person with the consent
of the respondent or his election agent distributed the said
pamphlets. nte pleading, therefore, does not spell out a caus~ •
of action. (1818 E-G]
·
7, nte election petition, in the instant case, was filed
on the last day on which the election petition could have been
presented, Having regard to the rigid period of limitation ~
prescribed by section 81 of the Act, it could not have been
·
presented even . on the next day. Such being the admittedy
position, it would make little difference whether the High
Court used the expression 'rejected' or dismissed'. It would
have had some significance if the petition was 'rejected'
instead
of being
'dismissed'
before
the expiry of
the
limitation
inasmuch
as
a
fresh petition which contained
material facts and was in conformity with the requirements of
law and which disclosed a cause of action could have been
presented 'within' the period of limitation, nie High Court ,(
was,
therefore,
perfectly
justified
in
dismissing
the
petition, And it makes no difference whether the expression
employed in 'dismissed' or 'rejected' for nothing turns on
whether the former expression is employed or the latter,
(1821 H; 822 A-DJ
8. nie expression 'corrupt practice' employed in the Act
would appear to be rather repulsive and offensive. It can
perhaps be replaced ~by a natural and unoffensive expression
such as 'disapproved practices', {1822 D-E]
CIVIL APPELLATE JURISDICTION : Civil Appeal No,
2774
( NCE) of 1985.
G
From the Judgment and Order dated 6th May, 1985 of the
H
Allahabad High Court in Election Petition No. 2 of 1985.
+
Ravi Prakash Gupta, N.M. Popli and Ms. Kirti Gupta for
the Appellant.
+
+
AZHAR HUSSAIN v. RAJIV GANDHI I THAKKAR, J.]
787
Dr. Y.S. Chitale, M,R. Sharma, S. c. Maheshwari, Ms.
Rachna Joshi and Dal veer Bhandari for t\·.e Respondent.
lhe Judgment of the Court was delivered by
THAKitAR, J. An election petition having been dismissed
on the ground that it did not comply with the mandatory
requirement to furnish material facts and particulars enjoined
by Section 83 of the Representation of People Act and that it
did not disclose a cause of action, the election petitioner
has appealed to this Court under Section 116-A of the
Representation of the People Ait of 1951 (Act).
lhe respondent was elected as a Member of the Lok Sabha
from the Amethi Constituency of Uttar Pradesh in the general
elections held on 24th December, 1984 under Section 15 of the
Act.
Having
secured
the
highest
votes
(3,65,041)
the
respondent was declared as elected on December 29, 1984. On
12th February, 1985,
the last date from challenging the
election the appellant (who claims to be a worker of the
Rashtriya
Sanjay
Manch),
an
elector
from
the
Amethi
constituency, filed the election petition giving rise to the
present appeal.
lhe election of the returned candidate, respondent
herein, was challenged on the ground of alleged corrupt
practices as defined by the Act. Seventeen grounds set out in
para 4( I to XVII) of the election petition were called into
aid in support of the challenge. lhe respondent upon being
served,
instead
of
filing
a written statement,
raised
preliminary objections to the maintainability of the petition
on a number of grounds inter alia contending that the petition
was
lacking in material
facts and
particulars
and
was
defective on that account, and that since it did not disclose
any cause of action it deserved to be dismissed. lhe appellant
on his part filed two applications for
amendment of the
election petition. (None of which was
for supplying the
material facts and particulars which were missing). All these
applications were heard together and were disposed of by the
Judgment under appeal upholding the preliminary objection
raised on behalf of the Respondent and dismissing the election
petition. Hence this appeal.
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788
SUPREME COURT REPORTS
[1986] 2 s.c.R.
In a democratic polity 'election' is the
mechanism.i,.-
devised to mirror the true wishes and the will of the people
in the matter of choosing their political managers and their
representatives who are supposed to echo their views and
represent their interest in the legislature. The results of
the Election are subject to judicial scrutiny and control only
B
with an eye on two ends. First, to ascertain that the
'true'
will of the people is reflected in the results and second, to
secure that only the persons who are eligible and qualifiedt- •
under the Constitution obtain the representation. In order
that the "true will" is ascertained the Courts will step in to
protect and safeguard the purity of Elections, for, if corrupt A
c
practices have influenced the result, or the electorate has
been a victim of fraud or deception or compulsion on any
essential matter, the will of the people as recorded in their '
votes / is
not
the
'free'
and
'true'
will
exercised\--
intelligently by deliberate choice. It is not the will of the
people in the true sense at all. And the Courts would,
D
therefore, it stands to reason, be justified in setting aside
the election in accordance with law if the corrupt practices
are established. So also when the essential qualifications for
eligibility demanded by the constitutional requirements are
not fulfilled, the fact that the successful candidate is the
true choice of the people is a consideration which is totally~
E
irrelevant notwithstanding the fact that it would be virtually
impossible to re-enact the elections and reascertain the
wishes of the people at the fresh elections the time-scenario
having
changed.
And
also notwithstanding the fact that
elections involve considerable expenditure of public revenue
(not to speak of private funds) and result in loss of public+
F
time, and accordingly there would be good reason for not
setting at naught the election which reflects the true will of
the people lightly. In matters of election the will of the+-
people
IDlSt
prevail and
Courts would
be understandably \
extremely slow to set at naught the will of the people truly
and freely exercised. If Courts were to do otherwise, the
G
Courts would be pitting their will against the will of the
~
people, or countermanding the choice of the people without any
object, aim or purpose. But where corrupt practices are
established the result of the election does not echo the true-+-
voice of the people. The Courts would not then be deterred by
the aforesaid considerations which in the corruption-scenario
H
lose relevance. Such would be the approach of the Court in an
..,
AZHl\R HUSSAIN v. RAJ IV GANDHI {THAKKAR, J.]
789
election matter where corrupt practice is established. But
what should happen when the material facts and particulars of
the alleged corrupt practices are not furnished and the
petition does not disclose a cause of action which the
returned candidate can under law be called upon to answer? The
High Court has given the answer that it must be SIJl1llllarily
dismissed. The appellant has challenged the validity of the
view taken by the High Court.
A
B
Learned
counsel
for
the appellant has
urged
four
submissions in support of this appeal viz:
GROUND A:
A - Since the Act does not provide for dismissal of
an election petition on the ground that material
C
particulars necessary
to
be
supplied in the
election petition as enjoined by Section 83 of the
Act are not incorporated in the election petition
inasmuch as Section 86 of the Act which provides
for SIJl1llllary dismissal of the petition does not
advert to Section of the Act there is no power in
D
the Court trying election petitions to dismiss the
pet1t1on even in exercise of powers under the Code
of Civil Procedure.
B - Even if the Court has the power to dismiss an
election petition Sll11111arily otherwise than under
E
Sect ion 86 of the Representation of People Act, the
power cannot be exercised at the threshold.
C -
In regard to seven grounds of challenge
embodied in paragraph 4 of the election petition
viz. I, II (i, ii & iii), XIII, XIV and XV the High
F
Court was not justified in dismissing the petition.
D -
Even if . the powers under the Code of Civil
Procedure can be exerciseJ by the Cou,rt hearing
election
petitions
worse
comes
to
worse,
an
election petition may be rejected· under Order 7,
G
Rule 11 of the Code of Civil Procedure, but in no
case can it be dismissed.
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c
D
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H
790
SUPREME COURT REPORTS
[1986) 2 S.C.R,
In order to understand the plea, a glance at Sections 83 ~
and 86(1) in so far as material is called for :-
"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 conlllitted such corrupt
practice and the date and place of the commission ,,J
of each of such practice; and
1
~
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."
"86 - Trial of election petitions -
(1) The High Court shall dismiss an election
petition which does not comply with the provisions
of section 82 or section 117.
EKJ>lanation - An order of the High Court dismissing
an election petition under this sub-section shall
be deemed to be an order made under clause (a) oft
section 98."
1
AZHAR HUSSAIN v. RAJIV GANDHI [THAKKAR, J.]
791
The argument is that where the legislature wanted to
provide for sunmary dismissal of the election petition, the
legislature has spoken on the matter. The intention was to
provide for sunnnary dismissal only in case of failure
to
comply with the requirement of Sections 81, 82 and
117
(l)
and not Sec. ·83.
{i)
-'--------------------------------------
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
br any elector within forty-five days from, but not
earlier than the date of election of the returned
candidate or if there ate more than returned
candidate at the election and the dates cif their
election are different, the later of those two
dates.
A
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Explanation : In this sub-section 'elector' means a
O
person who was entitled to vote at the election to
which the election petition relates, whether he has
voted at such an election or not.
(3) Every election petition shall be accompanied by
as many copies thereof as there are respondents
E
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.
82. Parties of the petition - A petitioner
shall
join as respondents to his petition -
(a) where the petitioner, in addition to claiming
declaration that the election of all. or any of the
returned
candidate is void,
claims
a further
declaration that he himself or any other candidate
has
been
duly
elected,
all
the
contesting
candidates other than the petitioner, and where no
such further declaration is claimed, all the
returned candidates; and
(b) any other candidate against whom allegations of
any corrupt practice are made in the petition.
F
G
H
A
792
SUPREME COURT REPORTS
(19861 2 s.c.R.
The argument is that inasmuch as Section 83(1) is not
adverted to in Section 86 in the context of the provisions,~
non-compliance with which entails dismissal of the election
petition, it follows that non-compliance with the requirements
of Section 83(1 ), even though mandatory, do not have lethal
consequence
of dismissal. Now it is not disputed that the
B
Code of Civil Procedure (CPC) applies to the trial of an
election petition by virtue of section 87 of the Act (2).
Si~~__'.'.~~--applic~ble: the Court trying the election+.-.
117. Security for costs -
(1) At
the time of
presenting an election petition, the petitioner
C
shall deposit in the High Court in accordance with
the Rules of the High Court a sum of two
thousand
Jj
rupees as security for the costs of the petition.
I"'
(2) During the course of the trial of an election rpetition, the High Court may,
at any time, call
D
upon the petitioner to give such further security
for costs as it may direct.
(2)
E
F
G
H
87. Procedure before the
High
Court -
(1) Subject
to the provisions of this Act and of any rules made
thereunder, every election petition shall be triep~
by the High Court,
as nearly as
may be, in
accordance with the procedure applicable under the
Code of Civil Procedure, 1908 (5 of 1908) to the
trial of the suits ;
Provided
that
the High
Court shall have the t
discretion to refuse, for reasons to be recorded in
writing, to examine any witness or witnesses if it
is of the opinion that the evidence of such witness··~·
or witnesses is not material for the decision 6£
the petition or that the party tendering such
witness or witnesses is doing so on frivolous
grounds or with a view to delay the proceedings.
(2) The provisions of the Indian Evidence Act, 1872
(1 of 1872), shall, subject to the provisions of 1
this Act, be deemed to apply in all respects to the-i--
trial of an election petition.
AZHAR HUS SA.IN v. RA.JIV GA.NllHI [THAKKAR, J. ]
793
petition can act in exercise of the powers of the Code
including Order 6 Rule 16 and Order 7 Rule 11.(a) which read
thus :-
Order 6, Rule 16 : "Striking out pleadings - The Court may at
any stage of the proceedings order to be struck out
or amend any matter in any pleading -
a) which may be unnecessary, scandalous, frivolous
or vexatious, or
b) which may tend to prejudice, embarrass or delay
the fair trial of the suit; or
c) which is otherwise an abuse of the process of
the Court."
Order 7, Rule 11 : "Rejection of Plalnt - The plalnt shall be
rejected in the following cases ·-
a) where it does not disclose a cause of action
xxxxx
xxxxx
XKXXX.
11
The fact that Section 82 does not find a place in Section
86 of the A.ct does not mean that powers under the CPC cannot
be exercised.
There is thus no substance in this polnt which is already
concluded against the appellant in Hardwari Lal
v. Kanwal
Singh, [1972] 2 S.C.R. 742
wherein this Court has in terms
negatived this very plea in the context of the situation that
material facts
and
particulars
relating to
the corrupt
practice
alleged
by
the
election petitioner
were
not
incorporated in the election petition as will be evident from
the following passage extracted from the judgment of A..N. Ray,
J, who spoke for the three-judge Bench :
"The allegations in paragraph 16 of the election
petition do not amount to any statement or material
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SUPREME COURT REPORTS
11986] 2 s.c.R.
fact of corrupt practice, It is not stated as to
which kind or form of assistance was obtained or¥
procured or attempted to obtain or procure, It is
not
stated
from
whom
the particular
type
of
assistance was obtained or procured or attempted to
obtain or procure. It is not stated in what manner
the assistance was
for the
furtherance of the
prospects of the election. The gravamen of the
char~e of corrupt practic'.' with~n. the meaning. of+- •
Section 123(7) of the Act 1s obta1n1ng or procuring
~
or abetting or attempting to obtain or procure any
assistance other than the giving of vote. In the
absence
of
any
sug,;estion
as
to
what
that
assistance was the election petition is lacking in Al
the most vital and essential material fact to ( -
furnish a cause of action.
Counsel on behalf of the respondent submitted that
an election petition could not be dismissed by
reason of want of material facts because Section 86
of the Act conferred power on the High Court
to
dismiss the election petition which did not comply
with the provisions of Section 81, or
Section 82
or Section 117 of the Act. It was emphasized that
Section 83 did not find place in section 86. UnderA
section 87 of the Act every election petition shall
be tried by the High Court as nearly as may be in
accordance with the procedure applicable under the
c
Code of Civil Procedure 1908 to the trial of the
suits. A suit which does not furnish cause of-taction can be dismissed."
In view of this pronouncement there is no escape from the 1
conclusion that
an
election
pet1t1on
can be
sunmarily
dismissed if it does not furnish cause of action in exercise
of the powers 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 J"
petition are not complied with. This Court in 8-nt R.1
Balkrishoa & Anr. v. George Fernandez & Ors., (1969) 3 s.c.c.
239,
has
expressed
itself in
no
unclear
terms
that
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AZllAR HUSSAIN v. RAJIV GANDHI [THAKKAR, J.]
795
the omission of a single material facf would lead to an A
incomplete cause of action and that an election petition without the material facts relating to a corrupt practice is not
an el1,ction petition at all. So also in Udha11 Singh 11. Mlldha11
Bao Scindia, {1977] 1 S.C.C. 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.
B
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 circunstances of the case. All the C
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 disobediance of the
mandate of Section 83(l)(a), An election petition therefore
can be and must be dismissed if it suffers from any such vice.
Tile first ground of challenge must therefore fail.
n
GROOND B :
Learned counsel for the petitioner has next argued that
E
in any event the
po~ers to reject an election petition
summarily
under
the
provisions of
the
Code
of Ci11il
Procedure should not be exercised at the threshold.
In
substance, the argument is that the court must proceed with
the trial, record the evidence, and only after the trial of
the election petition is concluded that the powers under the
Code of Civil Procedure for dealing appropriately with the
defective petition which does not disclose cause of action F
should be exercised. With respect to the learned counsel, it
is an argument which it is difficult to comprehend. nie whole
purpose of confernment of such powers is to ensure that a
litigation which is meaningless and bound to prove aborti11e
should not be permitted to occupy the time of the court and
exercise the mind of the respondent. nie sword of Damocle need
not be kept hanging over his head unnecessarily without point
or purpose. Even in an ordinary Civil litigation the Court
readily exercises the power to reject a plaint if it does not
disclose any cause of action. or the power to direct the
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SUPREME COURT REPORTS
!1986] 2 s.c.R.
concerned
partyto
strike
out
unnecessary,
scandalous,
frivolous or vexatious parts of the pleadings. Or such plead-~
ings which are likely to cause embarrassment or delay the fair ··""'·
trial of the action or which is otherwise an abuse of the
process of law. An order directing a party to strike out a
part of the pleading would result in the termination of the
case arising in the context of the said pleading. 1he
Courts
in exercise of the powers under the Code of Civil Procedure
can also treat any point going to the root of the matter such
as one pertaining to jurisdiction or maintainability as a~ '
preliminary point and can dismiss a suit without proceeding to
record evidence and hear elaborate arguments in the context of
such evidence, if the Court is satisfied that the action would ~·
terminate in view of the merits of the preliminary point of
objection. 1he contention that even if the election petition ·
is liable to be dismissed ultimately it should be so dismissed \.._,-·
only after recording evidence is a thoroughly misconceived and Y,,_
untenable argument. 1he powers in this behalf are meant to be
exercised to serve the purpose for which the same have been
conferred on the competent Court so that the litigation comes
to an end at the earliest and the concerned litigants are
relieved of the psychological burden of the litigation so as
to be free to follow their ordinary pursuits and discharge
their duties. And so that they can adjust their affairs on the
footing that the litigation will not make demands on their "'\,
time or resources, will not impede their future work, and they
are free to undertake and fulfil other commitments. Such being
the position in regard to matters pertaining to ordinary Civil
~
litigatidn, there is greater reason for taking the same view
in regard to matters pertaining to elections. So long as the +-
sword of Damocles of the election petition remains hanging an
elected member of the Legislature would not feel sufficiently
free to devote his whole-hearted attention to matters of Jl~' ·
public importance which clamour for his attention in his 1""
capacity as an elected representative of the concerned constituency. 1he time and attention demanded by his elected office
will have to be diverted to matters pertaining to the contest
of the election petition. Instead of being engaged in a
campaign to relieve the distress of the people in general and
of the residents of his constituency who voted him into ~
office, and instead of resolving their problems, he would be ·
engaged in a campaign to establish that he has in fact been
duly elected. Instead of discharging his functions as tr'
AZHAR HUSSAIN v. RAJIV GANDHI [THAKKAR, J,]
797
....
'
elected representative of the people, he will be engaged in a
struggle to establish that he is indeed such a representative,
notwithstanding the fact that he has in fact won the verdict
I
and the confidence of the electorate at the polls. He will
have not only to wind the vote of the people but also to win
the vote of the Court in a long drawn out litigation before he
can whole-heartedly engaged himself in discharging the trust
reposed in him by the electorate. The pendency of the election
petition would ,also act as a hindrance if he be entrusted with
""''
some public office in his elected capacity. He may even have
occasions to deal with the representatives of foreign powers
who may wonder whether he will eventually succeed and hesitate
to deal with him. The fact that an election petition calling
into question his election is pending may, in a given case,
!-
act as a psychological fetter and may not permit him to act
with full freedom. Even if he is made of stern metal, the
constraint introduced by the pendency of an election petition
-+
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may have some iinpact on his sub-conscious mind without his
ever being or becoming aware of it. Under the circumstances,
there is greater reason why in a dem:>cratic set-up, in regard
to a matter pertaining to an elected representative of the
people which is likely to inhibit him in the discharge of his
duties towards the Nation, the controversy is set at rest at
the earliest, if the facts of the case and the law so warrant.
Since the Court has the power to act at the threshold the
power llllSt. be exercised at the threshold itself in case the
Court is satisfied that it is a fit case for the exercise of
such power and that exercise of such powers is warranted under
the relevant provisions of law. To wind up the dialogue, to
contend that the powers to dismiss or reject an election
petition or pass appropriate orders should not be exercised
except at the stage of final judgment after recording the
evidence even if the facts of the case warrant exercise of
such powers, at the threshold, is to contend that the
legislature conferred these powers without point or purpose,
and we llllSt close our mental eye to the presence of the powers
which should be treated as non-existent.
The Court cannot
accede to such a proposition. The submission urged by the
learned counsel for the petitioner in this behalf llllst
therefore be firmly repelled.
·
(
)<.GROUND C :
I
The learned counsel for the election pb.itioner has very
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798
SUPREME COURT REPORTS
[1986] 2 s.c.R.
fairly contended that out of the 17 grounds embedded in the,
election petition,
grounds other than the seven mentioned by
him cannot be pressed into service and that he would restrict
his submissions to these seven grounds. It is therefore un- j
necessary to advert to grounds other than the seven grounds
which have been urged in support of this petition. We Will
accordingly proceed to consider the plea urged to the effect
that in regard to the aforesaid alleged corrupt practices, the
High Court was not justified in dismissing the election .,,
petition.
Before we deal With these
grounds seriatim, we consider
it appropriate to restate the settled position of law as i.t
emerges from the numerous decisions of this Court which have
been cited before us in regard . to the question as to what
exactly is the content of the expression 'material facts an.d 1
particulars', which the election petitioner shall incorporate
in his petition by virtue of Section 83(1) of the Act.
( l) What are mterial facts and particulate ?
Material facts are facts which if established would ~
give the petitioner the relief asked for. The test
required to be answered is whether the Court could •
have given a direct verdict in favour of the
election petitioner in case the returned candidate
had not appeared to oppose the election petition on
the basis of the facts pleaded in the petition.
Manubbai Nandlal Amrsey v. Popatlal Kanf.lal .Joshi
& Ors., [1969] 3 s.c.R. 211.
(2) In regard to the alleged corrupt practice
pertaining to
the assistance obtained from a
Government
servant,
the
following
facts
arE!
essential to clothe the petition With a cause of
action which Will call for an answer from the
returned candidate and D11st therefore be pleaded.
Hardnri Lal v. Itannl Singh, [1972] 2 s.c.R. 742:
a) mode of assistance;
b)measure of assistance; and
AZHAR HUSSAIN v, RAJIV GANDHI [THAKKAR, J,]
799
c) all vartous forms of facts pertaining to the
assistance.
(3) In the context of an allegation as regards
procuring, obtaining, abetting or attempting to
A
obtain or procure the assistance of Government
B
servants in election it is absolutely ess.ential to
plead the following :
a) kind or form of assistance obtained or procured;
b) in what manner the assistance was
obtained or
procured or atte~ted to be obtained or procured by
C
the election-candidate for promoting the prospects
of his election llanlvarl Lal v. lamral Singh.
(supra)
(4) The returned candidate ID.1st be told as to what
assistance he was supposed to have sought, the type
D
of assistance, the manner of assistance, the time
of assistance, the persons from whom the actual and
specific assistance was procured Bardlrarl Lal v.
Kanwal Singh. (supra)
(5) There m.1st also be a statement in the election
E
petition describing
the
manner
in which
the
prospects of the election was furthered and the way
in which the assistance was rendered. llanlvarl Lal
v. lanval Singh (supra).
(6)
The
election petitioner
nust
state with
F
exactness the time of assistance, the manner of
assistance, the persons from whom assistance was
obtained or
procured, the time and date of the
same, all these will have to be set out in the
particulars llanlvarl Lal v. lamral Singh (supra).
And having restated the settled position in regard to the
content of the expression 'material facts 1 , the time is now
ripe to proceed to deal with th•> gr9unds on "1hlch the election
of the returned candlcl:tte is a'l'laltecl, seriat:im.
GROUND I :
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SUPREME COURT REPORTS
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Alleged corrupt practice as incorporated in Ground l>-1
reads thus · -
"The election of the respondent is liable to be set
declared void because the respondent was guilty of
the following corrupt practice as defined under
Section 123(7) of the Representation of People Act,
1951, read with Section !OO(l)(b) and lOO(D)(ii) of
the
said
Act,
the said corrupt practice
was~ ~
committed
with
the
consent
of
the
respondent
returned candidate and of other workers of his with
his consent, In any event, it was committed by the ~
respondent's
agents
in
the
interests
of
the
returned candidate and the said corrupt practice
has materially affected the result of the election
in so far as it concerns the returned candidate. -r~
One M.H. Beg who at one time was the Chief Justice
of the Supreme Court of India and is a close
friend of the Nehru family and is personally known
to and friendly with the respondent, appeared on
the government controlled news media and made a
speech praising the respondent and comparing his
entry into politics as the birth of new Arjuna, the l
insinuation being that the opposition were the ,.,.._
kauravas. His appearance on the television was
relayed day after day on the government controlled
media.
Television sets had
been
installed in
practically every election office of the respondent
in Amethi constituency and throughout the election t
campaign thousands and thousands of voters were
exposed to the television appearance and speech of
the said Mr. Beg. Mr. Beg is a gazetted officer, ~
being the Chairman of the Minorities Commission.
His services were procured and obtained by the
,.
'
respondent, his agents and other persons with the ._
consent of the respondent with a view to a.qgist the
furtherance of the prospects of the respondent's
election.
Mr.
Beg was
seen and heard on the
television
as
later as
21st
December,
1984.
Propaganda about Mr. Beg's was done particularly .. J...-
amongst the members of the Muslim col!lllllnity.