Tuesday, 3 February 2015

Leading caselaw on cause of action

 In Mayar (H.K.) Ltd. v. Owners & Parties, Vessel
M.V. Fortune Express12, this Court at Paragraph-12 held that:
“12. … The court has to read the entire plaint as a
whole to find out whether it discloses a cause of action
and if it does, then the plaint cannot be rejected by the
court exercising the powers under Order 7 Rule 11 of
the Code. Essentially, whether the plaint discloses a
cause of action, is a question of fact which has to be
gathered on the basis of the averments made in the
plaint in its entirety taking those averments to be
correct. A cause of action is a bundle of facts which are
required to be proved for obtaining relief and for the
said purpose, the material facts are required to be
stated but not the evidence except in certain cases
where the pleadings relied on are in regard to
misrepresentation, fraud, wilful default, undue influence
or of the same nature. So long as the plaint discloses
some cause of action which requires determination by
the court, the mere fact that in the opinion of the Judge
the plaintiff may not succeed cannot be a ground for
rejection of the plaint.”
IN THE SUPREME COURT OF INDIA
CIVIL APPELLATE JURISDICTION
CIVIL APPEAL NOS. 69-70 OF 2012
Ashraf Kokkur V
K.V. Abdul Khader Etc.
Citation;(2015)1SCC129
Read original judgment here;click here
KURIAN, J.:

1. The simple question arising for consideration in this
case is whether the averments in the election petition disclose
a cause of action as required under Order VII Rule 11(a) of the
Code of Civil Procedure, 1908 (hereinafter referred to as ‘CPC’).
Incidentally, it may be noted that the election petition has been
dismissed by the impugned judgment dated 16.11.2011, which
reads as follows:
“J U D G M E N T
I.A. 4/11 is allowed. Election petition is dismissed in
limine as it does not disclose a complete cause of
action or a triable issue.”
1
REPORTABLE
Page 2
Of course, detailed reasons are given in the order dated
16.11.2011 in I.A. 4/2011, which is also under challenge in one
of the appeals.
2. The sole ground in the election petition is that the
respondent is disqualified under Article 191(1)(a) of the
Constitution of India, since he was holding the post of
Chairperson of the Kerala State Wakf Board. To the extent
relevant, the Article reads as follows:
“191. Disqualification for membership.-(1) xxx
(a) if he holds office of profit under the Government of
India or the Government of any State specified in the
First Schedule, other than an office declared by the
Legislature of the State by law not to disqualify its
holder;”
(Emphasis supplied)
3. The High Court has taken the view that the election
petition does not clearly contain a pleading that the respondent
holds an office of profit under the State Government. The
pleading is only to the effect that the respondent holds an
office of profit.
4. Therefore, the only inquiry that is required in this case
is to see on reading the election petition as a whole, whether
the petitioner has disclosed a cause of action.
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Page 3
UNDISPUTED FACTS
5. The respondent was the Chairperson of the Kerala State
Wakf Board when he contested the election to the Kerala
Legislative Assembly. The petitioner in fact objected to his
nomination, as per Annexure P1(d) (Annexure-D). The
objection, to the extent relevant, reads as follows:
“Mr. Abdul Kader is candidate for Guruvayoor
Constituency. He is Chairman of Kerala State Wakf
Board. He is holding an office of profit under
Government of Kerala and hence disqualified.”
(Emphasis supplied)
6. However, as per order dated 29.03.2011, the objection
was overruled holding that the petitioner failed to prove beyond
doubt as to whether the elected office bearers of the Wakf
Board would come under the purview of the office of profit as
stated under Article 191 of the Constitution of India [Annexure-
P1(c)-(Annexure-C)].
PLEADINGS IN THE ELECTION PETITION
7. To see whether the facts pleaded in the election
petition constitute a cause of action, we shall extract the
relevant ones, with emphasis supplied. At Paragraph-3 of the
election petition, it is stated as follows:
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Page 4
“3. The petitioner respectfully submits that on the
date of election, the first respondent was
disqualified to contest the election as he was
admittedly on that day holding an office of profit,
namely the Chairperson of the Kerala State Wakf
Board. In terms of Section 14(9) of the Wakf Act
(Central Act 43) of 1995, the Chairperson of the
State Wakf Board, which is constituted by the
State Government, namely the first respondent
was appointed as Chairman of the Kerala State
Wakf Board on 29th December, 2008. ….”
xxx xxx xxx
“The Chairperson of the State Wakf Board is
performing public duties particularly of statutory
nature under the Wakf Act 1995. He exercises
even Quasi Judicial and supervisory powers. He
receives such remuneration as are provided for
and prescribed by the Government of Kerala. …”
8. Paragraph-4 of the election petition to the extent
relevant, reads as follows:
“4. Article 191 of the Constitution of India to the
extent relevant reads as follows:-
“191. Disqualification of membership.-(1) A person shall
be disqualified for being chosen as, and for being, a
member of the Legislative Assembly or Legislative
Council of a State-
(a) if he holds any office of profit under the
Government of India or the Government of any
State specified in the First Schedule, other than an
office declared by the Legislature of the State by
law not to disqualify its holder;
(b) if he is of unsound mind and stands so declared by
a competent court;
(c) if he is an undischarged insolvent;
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Page 5
(d) if he is not a citizen of India, or has voluntarily
acquired the citizenship of a foreign State, or is
under any acknowledgement of allegiance or
adherence to a foreign State;
(e) if he is so disqualified by or under any law made
by Parliament.
(Explanation.-For the purposes of this clause, a
person shall not be deemed to hold an office of profit
under the Government of India or the Government of
any State specified in the First Schedule by reason only
that he is a Minister either for the Union or for such
State.
(2) A person shall be disqualified for being a member
of the Legislative Assembly or Legislative Council of a
State if he is so disqualified under the Tenth
Schedule).”
9. Paragraph-5 of the election petition refers to the
objection before the Returning Officer and the order passed
thereof, which we have already referred to above.
10. Paragraph-6 of the election petition reads as follows:
“6. The petitioner respectfully submits that in terms of
the principles evolved by the Apex Court, the first
Respondent falls within the expression ‘holder of
an office of profit’ in view of the following admitted
facts, among other tests.
(1) He was appointed by the State of
Kerala, from members of a statutorily
constituted body.
(2) He is removable by the State
Government.
(3) The resignation tendered by him has to
be accepted and a successor appointed and
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Page 6
said appointment should be duly notified in
the Gazette, which was not done.
(4) The first Respondent has been
admittedly granted honorarium, allowances
and enjoying the facility of a car at State
expenses and drawing other pecuniary
advantages.
(5) The office held by him is a public office.
(6) There is a degree of control by and
dependence on government and
governmental functions are performed.
Besides, paying the remuneration the functions
performed by the first Respondent, the holder of
an office of profit, are carried on by him from the
Government with an effective Governmental
control over his duties and functions. Undoubtedly
from the office that he holds the first Respondent
is deriving pecuniary gains and the office he holds
is that of a permanent nature.”
11. At Paragraph-7 of the election petition, it is pleaded as
follows:
“7. The first Respondent has been granted the facility
of a car driver whose salary and other allowances
are paid also from the funds of the Government of
Kerala. This also goes to point out that the office
that he holds is that of an ‘office of profit’. …”
12. At Paragraph-10 of the election petition, it is averred as
follows:
“10. Since, admittedly on the date of the election, the
first Respondent was holding an office of profit as
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Page 7
Chairperson of the Kerala State Wakf Board, he was
disqualified to contest the elections. …”
13. Ground-A of the election petition, to the extent relevant,
reads as follows:
“A. Admittedly on the date of the election, the
returned candidate, the first Respondent was
disqualified to contest the elections under Section
100 (1) (a) in that he was holding an office of
profit as contemplated under Article 191 of the
Constitution of India, the Chairperson of the Wakf
Board. Admittedly the first Respondent was
appointed by the State of Kerala. Concededly he
was entitled to and was drawing financial
perquisites and allowances and enjoying pecuniary
benefit from the State as Chairperson of the State
Wakf Board. He therefore, was holding an office of
profit which is a disqualification as contemplated
under Article 191 of the Constitution of India and
even now he is continuing as such in the position.
Thus, the first respondent was wholly disqualified
to contest the elections to the Kerala State
Legislative Assembly. …”
THE REPRESENTATION OF THE PEOPLE ACT, 1951
14. Section 83 of The Representation of the People Act,
1951 (hereinafter referred to as ‘the RP Act’), reads as follows:
“ 83. Contents of petition.—(1) An election petition—
(a) shall contain a concise statement of the material
facts on which the petitioner relies;
(b) shall set forth full particulars of any corrupt
practice that the petitioner alleges, including as
full a statement as possible of the names of the
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Page 8
parties alleged to have committed such corrupt
practice and the date and place of the commission
of each such practice; and
(c) shall be signed by the petitioner and verified in the
manner laid down in the Code of Civil Procedure,
1908
(5 of 1908) for the verification of pleadings:
[Provided that where the petitioner alleges any corrupt
practice, the petition shall also be accompanied by an
affidavit in the prescribed form in support of the
allegation of such corrupt practice and the particulars
thereof.]
(2) Any schedule or annexure to the petition shall also
be signed by the petitioner and verified in the same
manner as the petition.]”
(Emphasis supplied)
The requirement under Section 83(1)(a) of the RP Act in
contradistinction to Section 83(1)(b) of the RP Act is that the
election petition need contain only a concise statement of the
material facts and not material particulars. ‘Concise’ according
to Oxford Dictionary means, ‘brief and comprehensive’.
Concise Oxford Dictionary has given the meaning to the
expression ‘Concise’ as ‘giving a lot of information clearly and
in few words’. As per Webster Comprehensive Dictionary,
International Edition, expression has been defined as
‘expressing much in brief form’. Having furnished the facts in a
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Page 9
compendious manner, can it be said that there is no concise
statement of material facts?
15. Holding an office of profit under the Government of
India or Government of any State is the disqualification.
Whether that ground is discernible if the election petition is
read as a whole, is the simple exercise to be undertaken by the
High Court, when called upon to do so under Order VII Rule
11(a) of CPC. At Paragraph-3 of the election petition, it is
contended that the respondent was holding an office of profit,
viz., the Chairperson of the Kerala State Wakf Board. Again, in
the same paragraph, it is stated that the Chairperson of the
State Wakf Board receives such remuneration as are provided
for and prescribed by the Government of Kerala. After quoting
Article 191 of the Constitution, it is pleaded that any person
who holds an office of profit under the State Government, is
debarred from contesting the elections to the Legislative
Assembly. It is again pleaded that the State of Kerala having
not made any legislation on removal of disqualification of the
Chairperson of the Wakf Board, the Chairperson of the Kerala
State Wakf Board is disqualified under Article 191 of the
Constitution. At Paragraph-6, enumerating the particulars, it is
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Page 10
pleaded that he was holding an office of profit in having been
granted honorarium, allowances and enjoying the facility of a
car at State expenses and drawing other pecuniary advantages.
Again, under Paragraph-7, it is stated that the first respondent
was provided with chauffeur whose salary and allowances are
paid also from the funds of the Government of Kerala. At
Paragraph-10, it is clearly stated that “since admittedly on the
date of the election, the first Respondent was holding an office
of profit as Chairperson of the Kerala State Wakf Board, he was
disqualified to contest the election”. In Ground-A in the election
petition, it is reiterated that the first respondent suffered from
the disqualification under Article 191 of the Constitution of India
since he was holding an office of profit as Chairperson of the
Wakf Board and that he was entitled and drawing financial
perquisites and allowances and pecuniary benefits from the
State of Kerala as Chairperson of the Kerala State Wakf Board
and, hence, he was holding an office of profit which was a
disqualification under Article 191 of the Constitution of India.
Thus, he was disqualified to contest the election to the Kerala
State Legislative Assembly. These averments, to us, clearly
disclose a cause of action, viz., the respondent was holding the
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Page 11
position as Chairperson of the Kerala State Wakf Board and
deriving financial benefits from the Kerala Government is
disqualified under Article 191(1)(a) of the Constitution of India,
as holding of an office of profit under the State Government of
Kerala. That is the triable issue in the election petition.
16. The question whether a schedule or annexures to the
election petition is an integral part of the election petition was
first discussed by this Court in Sahodrabai Rai v. Ram Singh
Aharwar1. It was held that a schedule or an annexure which is
merely an evidence in the case and included only for the sake
of adding strength to the petitioner, does not form an integral
part of the election petition. It was a case where the annexures
were not verified by the election petitioner as required under
Section 83(2) of the RP Act.
17. The question raised in Sahodrabai Rai case (supra)
was:
“Whether the election petition is liable to be dismissed
for contravention of Section 81(3)2 of The
Representation of the People Act, 1951 as copy of
1 AIR 1968 SC 1079
2 81. Presentation of petitions.— xxx (3) Every election petition
shall be accompanied by as many copies thereof as there are
respondents mentioned in the petition and every such copy shall be
attested by the petitioner under his own signature to be a true copy of
the petition.
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Annexure-A to the petition was not given along with the
petition for being served on the respondents.”
18. The issue was again considered by this Court in M.
Kamalam v. Dr. V.A. Syed Mohammed3. Paragraph-5 of the
said judgment reads as follows:
“5. Now, the first question which arises is as to what
constitutes an election petition for the purpose of
Section 81 sub-section (3). Is it confined only to election
petition proper or does it also include a schedule or
annexure contemplated in sub-section (2) of Section 83
or a supporting affidavit referred to in the proviso to
Section 83 sub-section (1)? To answer this question, we
must turn to Section 83 which deals with contents of an
election petition. Sub-section (1) of that section sets out
what an election petition shall contain and provides
that it shall be signed by the petitioner and verified in
the manner laid down in the Code of Civil Procedure,
1908 for the verification of pleadings. The proviso
requires that where the petitioner alleges any corrupt
practice, the election petition shall also be
accompanied by an affidavit in the prescribed form in
support of the allegation of such corrupt practice and
the particulars thereof. The context in which the proviso
occurs clearly suggests that the affidavit is intended to
be regarded as part of the election petition. Otherwise,
it need not have been introduced in a section dealing
with contents of an election petition nor figured as a
proviso to a sub-section which lays down what shall be
the contents of an election petition. Sub-section (2) also
by analogy supports this inference. It provides that any
schedule or annexure to an election petition shall be
signed by the petitioner and verified in the same
manner as an election petition. It is now established by
the decision of this Court in Sahodrabai Rai v. Ram
Singh Aharwar that sub-section (2) applies only to a
schedule or annexure which is an integral part of the
3 (1978)2 SCC 659
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election petition and not to a schedule or annexure
which is merely evidence in the case but which is
annexed to the election petition merely for the sake of
adding strength to it. The scope and ambit of subsection
(2) was explained in the following words by
Hidayatullah, J., speaking on behalf of the Court in
Sahodrabai case at pp. 19-20:
“We are quite clear that sub-section (2) of
Section 83 has reference not to a document
which is produced as evidence of the averments
of the election petition but to averments of the
election petition which are put, not in the
election petition but in the accompanying
schedules or annexures. We can give quite a
number of examples from which it would be
apparent that many of the averments of the
election petition are capable of being put as
schedules or annexures. For example, the
details of the corrupt practice there in the
former days used to be set out separately in the
schedules and which may, in some cases, be so
done even after the amendment of the present
law. Similarly, details of the averments too
compendious for being included in the election
petition may be set out in the schedules or
annexures to the election petition. The law then
requires that even though they are outside the
election petition, they must be signed and
verified, but such annexures or schedules are
then treated as integrated with the election
petition and copies of them must be served on
the respondent if the requirement regarding
service of the election petition is to be wholly
complied with. But what we have said here
does not apply to documents which are merely
evidence in the case but which for reasons of
clarity and to lend force to the petition are not
kept back but produced or filed with the
election petitions. They are in no sense an
integral part of the averments of the petition
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but are only evidence of those averments and
in proof thereof.”
It would, therefore, be seen that if a schedule or
annexure is an integral part of the election petition, it
must be signed by the petitioner and verified, since it
forms part of the election petition. The subject-matter
of sub-section (2) is thus a schedule or annexure
forming part of the election petition and hence it is
placed in Section 83 which deals with contents of an
election petition. …”
(Emphasis supplied)
19. All the annexures attached to the election petition in
the present case have been signed and verified by the election
petitioner as per the requirement under Section 83(2) of the RP
Act, as can be seen from Annexure-P1(Colly). Therefore,
Annexure-P1(d) to the election petition (Annexure-D herein)
forms an integral part of the election petition. There is a clear
and unambiguous plea that the respondent was holding the
post of Kerala State Wakf Board, holding an office of profit
under the Government of Kerala and, hence, he was
disqualified.
20. Annexure-D is referred at Paragraph-5 of the election
petition, which reads as follows:
“5. Even so, the first Respondent submitted his
nomination before the Returning Officer in the said
Constituency. Objection was taken that the first
Respondent was disqualified to be chosen to fill the
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seat under the Constitution of India. But the same was
rejected by the Returning Officer without any
application of Mind. A copy of the order is produced
herewith and marked as Annexure C, the date shown
therein has been corrected as 29.3.2011, while its
English translation is produced herewith and marked as
Annexure C1 and the objection submitted by the
petitioner with the forwarding letter is produced and
marked as Annexure D.”
21. Recently, a three-Judge Bench of this Court in G.M.
Siddeshwar v. Prasanna Kumar4 (Judgment is authored by
one of us, Lokur, J.), had an occasion to refer to this issue.
Referring to Sahodrabai Rai case (supra), it was held at
Paragraphs-54 to 56 as follows:
“54. In Sahodrabai Rai v. Ram Singh Aharwar5 the
question raised was as follows: (AIR p. 1080, para 3)
“3. … ‘Whether the election petition is liable to be
dismissed for contravention of Section 81(3) of the
Representation of the People Act, 1951 as copy of
Annexure A to the petition was not given along with
the petition for being served on the respondents.’”
55. It was noted that the contents of the pamphlet,
in translation, were incorporated in the election
petition. It was also noted that the trial of an election
petition has to follow, as far as may be, the provisions
of CPC. Therefore, this Court approached the problem
by looking at CPC to ascertain what would have been
the case if what was under consideration was a suit and
not the trial of an election petition.
4 (2013) 4 SCC 776
5 AIR 1968 SC 1079
15
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56. It was held that where the averments are too
compendious for being included in an election petition,
they may be set out in the schedules or annexures to
the election petition. In such an event, these schedules
or annexures would be an integral part of the election
petition and must, therefore, be served on the
respondents. This is quite distinct from documents
which may be annexed to the election petition by way
of evidence and so do not form an integral part of the
averments of the election petition and may not,
therefore, be served on the respondents.”
22. Further, at Paragraph-57, there is also reference to
M. Kamalam case (supra) and it is held as follows:
“57. In M. Kamalam v. V.A. Syed Mohammed this
Court followed Sahodrabai Rai and held that a schedule
or an annexure which is an integral part of an election
petition must comply with the provisions of Section
83(2) of the Act. Similarly, the affidavit referred to in
the proviso to Section 83(1) of the Act where the
election petition alleges corrupt practices by the
returned candidate also forms a part of the election
petition. If the affidavit, at the end of the election
petition is attested as a true copy, then there is
sufficient compliance with the requirement of Section
81(3) of the Act and would tantamount to attesting the
election petition itself.”
23. The pleadings, if taken as a whole, would clearly show
that they constitute the material facts so as to pose a triable
issue as to whether the first respondent is disqualified to
contest election to the Kerala State Legislative Assembly while
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holding an office of profit under the State government as
Chairperson of the Kerala State Wakf Board.
24. The question is not whether the Chairperson of the
Kerala State Wakf Board is an office of profit or not. That is the
issue to be tried. Question is whether the petitioner has raised
such a question in the election petition. The disqualification
under the Constitution of India being, holding an office of profit
under the State Government. Petitioner has furnished all the
material particulars in that regard. Therefore, the petition
discloses a cause of action.
25. After all, the inquiry under Order VII Rule 11(a) of CPC is
only as to whether the facts as pleaded disclose a cause of
action and not complete cause of action. The limited inquiry is
only to see whether the petition should be thrown out at the
threshold. In an election petition, the requirement under
Section 83 of the RP Act is to provide a precise and concise
statement of material facts. The expression ‘material facts’
plainly means facts pertaining to the subject matter and which
are relied on by the election petitioner. If the party does not
prove those facts, he fails at the trial (see Philipps v. Philipps
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and others6 ; Mohan Rawale v. Damodar Tatyaba alias
Dadasaheb and others7).
26. This Court in Azhar Hussain v. Rajiv Gandhi8, at
Paragraph-11, has held that:
“11. … Whether in an election petition a particular fact
is material or not and as such required to be pleaded is
dependent on the nature of the charge levelled and the
circumstances of the case. …”
The charge levelled is that the respondent holds an
office of profit as the Chairperson of the Kerala State Wakf
Board and in that capacity he enjoys the profits attached to
that office from the Government of Kerala.
27. In V.S. Achuthanandan v. P.J. Francis and
another9 , a three-Judge Bench of this Court has
taken the view that only because full particulars are not given,
an election petitioner is not to be thrown out at the threshold.
To quote Paragraph-15:
“15. … An election petition was not liable to be
dismissed in limine merely because full particulars of
corrupt practice alleged were not set out. It is,
therefore, evident that material facts are such primary
facts which must be proved at the trial by a party to
6 (1878) 4 QBD 127, 133
7 (1994) 2 SCC 392, 399
8 1986 Supp SCC 315
9 (1999) 3 SCC 737
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establish existence of a cause of action. Whether in an
election petition a particular fact is a material fact or
not, and as such, required to be pleaded is a question
which depends on the nature of the charge levelled, the
ground relied upon, and in the light of the special
circumstances of the case. ..”
28. Again at Paragraph-16 of V.S. Achuthanandan case
(supra), it was held that:
“16. … So long as the claim discloses some cause of
action or raises some questions fit to be decided by a
Judge, the mere fact that the case is weak and not
likely to succeed is no ground for striking it out. The
implications of the liability of the pleadings to be struck
out on the ground that it discloses no reasonable cause
of action are generally more known than clearly
understood. …”
xxx xxx xxx
“… the failure of the pleadings to disclose a reasonable
cause of action is distinct from the absence of full
particulars. …”
(Emphasis supplied)
29. In Hari Shanker Jain v. Sonia Gandhi10 , a three-
Judge Bench of this Court held that the expression ‘cause of
action’ would mean facts to be proved, if traversed, in order to
support his right to the judgment of the court and that the
function of the party is to present a full picture of the cause of
action with such further information so as to make opposite
10 (2001) 8 SCC 233
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party understand the case he will have to meet. To quote
Paragraph-23:
“23. … The expression “cause of action” has been
compendiously defined to mean every fact which it
would be necessary for the plaintiff to prove, if
traversed, in order to support his right to the judgment
of court. Omission of a single material fact leads to an
incomplete cause of action and the statement of claim
becomes bad. The function of the party is to present as
full a picture of the cause of action with such further
information in detail as to make the opposite party
understand the case he will have to meet. (See Samant
N. Balkrishna v. George Fernandez, Jitendra Bahadur
Singh v. Krishna Behari.) Merely quoting the words of
the section like chanting of a mantra does not amount
to stating material facts. Material facts would include
positive statement of facts as also positive averment of
a negative fact, if necessary. In V.S. Achuthanandan v.
P.J. Francis this Court has held, on a conspectus of a
series of decisions of this Court, that material facts are
such preliminary facts which must be proved at the trial
by a party to establish existence of a cause of action.
Failure to plead “material facts” is fatal to the election
petition and no amendment of the pleadings is
permissible to introduce such material facts after the
time-limit prescribed for filing the election petition.”
30. In Syed Dastagir v. T.R. Gopalakrishna Setty11,
while referring to the pleadings, it has been held at Paragraph-
9 that:
“9. … In construing a plea in any pleading, courts
must keep in mind that a plea is not an expression of
art and science but an expression through words to
11 (1999) 6 SCC 337
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place fact and law of one’s case for a relief. Such an
expression may be pointed, precise, sometimes vague
but still it could be gathered what he wants to convey
through only by reading the whole pleading, depending
on the person drafting a plea. …”
“ … So to insist for a mechanical production of the
exact words of a statute is to insist for the form rather
than the essence. So the absence of form cannot
dissolve an essence if already pleaded.”
31. In Mayar (H.K.) Ltd. v. Owners & Parties, Vessel
M.V. Fortune Express12, this Court at Paragraph-12 held that:
“12. … The court has to read the entire plaint as a
whole to find out whether it discloses a cause of action
and if it does, then the plaint cannot be rejected by the
court exercising the powers under Order 7 Rule 11 of
the Code. Essentially, whether the plaint discloses a
cause of action, is a question of fact which has to be
gathered on the basis of the averments made in the
plaint in its entirety taking those averments to be
correct. A cause of action is a bundle of facts which are
required to be proved for obtaining relief and for the
said purpose, the material facts are required to be
stated but not the evidence except in certain cases
where the pleadings relied on are in regard to
misrepresentation, fraud, wilful default, undue influence
or of the same nature. So long as the plaint discloses
some cause of action which requires determination by
the court, the mere fact that in the opinion of the Judge
the plaintiff may not succeed cannot be a ground for
rejection of the plaint.”
12 (2006) 3 SCC 100
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32. In a recent decision in Ponnala Lakshmaiah v.
Kommuri Pratap Reddy and others13, this Court had held at
Paragraphs-17 and 29 that:
“17. … The courts need to be cautious in dealing
with requests for dismissal of the petitions at the
threshold and exercise their powers of dismissal only in
cases where even on a plain reading of the petition no
cause of action is disclosed.”
(Emphasis supplied)
xxx xxx xxx
“29. … An election which is vitiated by reason of
corrupt practices, illegalities and irregularities
enumerated in Sections 100 and 123 of the Act cannot
obviously be recognised and respected as the decision
of the majority of the electorate. The courts are,
therefore, duty-bound to examine the allegations
whenever the same are raised within the framework of
the statute without being unduly hypertechnical in their
approach and without being oblivious of the ground
realities.”
33. Finally, as cautioned by this Court in Raj Narain v.
Indira Nehru Gandhi and another 14, it was held that:
“19. Rules of pleadings are intended as aids for a fair
trial and for reaching a just decision. An action at law
should not be equated to a game of chess. Provisions of
law are not mere formulae to be observed as rituals.
Beneath the words of a provision of law, generally
13 (2012) 7 SCC 788
14 (1972) 3 SCC 850
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speaking, there lies a juristic principle. It is the duty of
the court to ascertain that principle and implement it.
…”
(Emphasis supplied)
34. Guided by the settled principles of law referred to
above, we are of the view that the election petition having
disclosed a cause of action, it should not have been thrown out
at the threshold. The impugned order and judgment are hence
set aside. The appeals are allowed. The election petition is
remitted to the High Court for trial in accordance with law.
35. There is no order as to costs.
....………………….....…J.
(MADAN B. LOKUR)
…......……………………J.
(KURIAN JOSEPH)
New Delhi;
August 29, 2014.
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