Holding

The election petition failed to disclose material facts or plead a material effect on the election result and therefore must be dismissed under Order VII Rule 11 CPC.

Summary

The case concerned an application under Order VII Rule 11 of the CPC seeking dismissal of an election petition challenging the 2022 legislative election for Tankara constituency. The petitioner alleged that the returned candidate, Durlabhji Detharia, had suppressed material information in his nomination affidavit, violating Sections 33, 33A and 100(1)(b), 100(1)(d)(i) and (iv) of the Representation of the People Act, 1951. The court examined whether the petition disclosed a cause of action and complied with the requirement of a concise statement of material facts under Section 83. Relying on precedents such as Karim Uddin Barbhuiya v. Aminul Haque Laskar and Kanimozhi Karunanidhi, the court held that the petition failed to plead how the alleged irregularities materially affected the election result. Consequently, the petition was found to be non‑compliant with Sections 81, 83 and 86 of the RP Act. The application for dismissal was allowed and the election petition was rejected at the threshold.

Issues considered

The election petition must disclose a cause of action and a concise statement of material facts as required by Section 83 of the RP Act.
Whether the alleged omissions in the nomination affidavit constitute a corrupt practice under Section 100(1)(b) and 100(1)(d) of the RP Act.
Whether the petition adequately pleaded that the result of the election was materially affected by the alleged improper acceptance of the nomination.
Whether Order VII Rule 11 CPC can be invoked to dismiss the election petition for non‑compliance with Sections 81, 83 and 86 of the RP Act.

Legislation cited

Code of Civil Procedures. Order VII Rule 11
Conduct of Elections Rules, 1961s. Rule 4(a)
Representation of the People Act, 1951s. 100(1)(b), s. 100(1)(d)(i), s. 100(1)(d)(iv), s. 101(b), s. 123(2), s. 33, s. 33A, s. 36(4), s. 81, s. 83, s. 86, s. 87

Subjects

election petitionRepresentation of the People ActSection 100corrupt practiceundue influenceOrder VII Rule 11material factsnomination formaffidavit disclosurenon‑disclosure

Judgment

C/EA/7/2024 JUDGMENT DATED: 02/04/2026

IN THE HIGH COURT OF GUJARAT AT AHMEDABAD

R/ELECTION APPLICATION NO. 7 of 2024
In
R/ELECTION PETITION/2/2023
With
R/ELECTION PETITION NO. 2 of 2023
With
R/ELECTION APPLICATION NO. 5 of 2024
In
R/ELECTION PETITION NO. 2 of 2023
With
R/ELECTION APPLICATION NO. 6 of 2024
In
R/ELECTION PETITION NO. 2 of 2023

FOR APPROVAL AND SIGNATURE:

HONOURABLE MR. JUSTICE ILESH J. VORA
==========================================================

Approved for Reporting Yes No

==========================================================
DURLABHJIBHAI HARAKJIBHAI DETHARIA
Versus
LALITBHAI KARAMSHIBHAI KAGATHARA & ORS.
==========================================================
Appearance:
MR ND NANAVATY, SR. ADVOCATE WITH MR ROHAN LAVKUMAR WITH
MR. NISARG TRIVEDI WITH MR ADITYA DAVE for NANAVATI
ASSOCIATES(1375) for the Applicant(s) No. 1
MR HRIDAY BUCH for the Respondent(s) No. 1
MR BHARAT T RAO(697) for the Respondent(s) No. 4
MR DAXAY D PATEL(6633) for the Respondent(s) No. 3
MS MALTI BHARAT RAO(2558) for the Respondent(s) No. 2
==========================================================

CORAM:HONOURABLE MR. JUSTICE ILESH J. VORA

Date : 02/04/2026

COMMON ORAL JUDGMENT

1. This application is under Order VII Rule 11 of the Code of Civil
Procedure (CPC), seeking dismissal of the Election Petition at the
threshold, on the ground that, the Election Petition is barred by law, as it

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does not fall within the purview of Section 81 and it fails to disclose
triable cause of action.

2. An election petition questioning the validity of the legislative
election-2022, seat of 66 – Tankara Assembly Constituency being filed
by the election petitioner Lalitbhai Kagathra. The applicant – returned
candidate – Durlabhji Detharia had filed his nomination form as a
candidate of Bharatiya Janta Party along with the affidavit in Form
No.26. During the scrutiny, the election petitioner raised the written
objection against the nomination form, inter alia, stating that, the returned
candidate had not mentioned proper information and some of the columns
of the affidavit left blank or filled by just “tick/dash marking”. After
hearing the parties, the Returning Officer by overruling the objections,
accepted the nomination form observing that, he did not find any defect
in the form and affidavit and merely on the basis of incorrect information,
the nomination paper does not require to be rejected. The voting of the
election took place on 01.12.2022. The applicant –returned candidate
declared as elected on 08.12.2022. He was polled 83,274 votes. The
election petitioner, who had lost the election on the platform of the Indian
National Congress, was polled 73,018 votes.

3. In the aforesaid facts, an election petition questioning the validity
of the election has been preferred, inter alia, praying that, the election of
returned candidate be declared void under Section 100(1)(b), 100(1)(d)(i)
and (iv) of The Representation of the People Act, 1951 (hereinafter
referred to as “R.P. Act”).

The grounds raised in the election petition are that,

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(i) the returned candidate had suppressed the material
information in the nomination papers and affidavit which is in
contravention to the notification dated 30.09.2013 of Election
Commission of India and specific guidelines, issued by the
Apex Court in the case of Public Interest Foundation & Ors.
Vs. Union of India (2019 (3) SCC 244) and further in Union of
India vs. Association of Democratic Reforms (2002 (5) SCC
294),

(ii) the election is liable to be declared void as the
returned candidate had indulged into corrupt practices of undue
influence by committing material irregularities in filling of the
necessary details in the nomination form as well as in the
affidavit (Form No.26), as a result, the election in so far as it
concerned a returned candidate, has been materially affected.

(iii) since the returned candidate suppressed the relevant
information required to be mentioned in the form No.26
affidavit, it amounts to non-compliance with the provisions of
Sections 33, 33A and 34 of the R.P. Act, and Rules framed
thereunder, rendering his election liable to be declared as void.

4. I will briefly set out the gist of the pleas raised by the election
petitioner in election petition to appreciate the nature of controversy.
According to say of the election petitioner, the nomination form and
affidavit as contemplated suffers from the following defects and
discrepancies:

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(a) The details of social media accounts are not disclosed and the
column no.3 was kept blank (item no.3);

(b) In item no.4, last five years income as mentioned in the ITR, was
disclosed, but for which financial year, the income represents, is not
specified;

(c) In item no.5(i), with respect to pendency of criminal proceedings
were not ticked and was left blank and the same is not being properly
disclosed in accordance with the instructions made in Form No.26;

(d) In item no.6(i), with respect to the past conviction in any criminal
cases, were being left completely blank and as per instructions, no
tick-mark was being done;

(e) In item no.7(A) and 7(B), a chart disclosing movable and
immovable assets have been shown, but failed to disclose the
complete details (non disclosing full details of bank accounts, election
expenditure account, details of investments in the shares and
debentures, business details, details of personal loans, particulars of
vehicles, weight and value of the gold, value of claims/interest,
particulars with regard to agricultural land and its market value,
particulars with regard to self acquired property, commercial
property, residential property, information with regard to liability.

(f) In column no.8, 9, 9(A) and 10, were not been filled up as
required under the notification and marked as (-), or answered as
“Yes” or “No” is not permissible under guidelines of the notification
dated 30.09.2013 and being filled up in violation of Section 33(A) of
the R.P. Act.

(g) In Part-B of the affidavit, wherein the disclosure is contrary to the

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disclosure made in Part-A of the affidavit.
(h) In column no.11(11), no details being furnished in relation to the
higher education.

In such circumstances, it is averred in the petition that, the returned
candidate has deliberately suppressed the mandatory facts about
properties and made a false declaration with regard to the assets which
constitutes corrupt practice within meaning of Section 123(2) of the R.P.
Act and such deliberate non-disclosure would directly impact the
election. The conduct of Election Rules, 1961 expressly requires
disclosure of assets, liabilities and source of income and the said
suppression and willful concealment is of substantial character and filling
up affidavit with blank particulars would render the affidavit nugatory
and render the nomination invalid and void and in such circumstances,
the election of returned candidate be declared null and void and the
election petitioner having secured second highest number of votes may be
declared as duly elected candidate.

5. The applicant – returned candidate seeks dismissal of the election
petition under Order 7 Rule 11 CPC read with Section 86 of the R.P. Act,
inter alia, stating that, the election petition neither reflect any fact or
ground in terms of Section 100 and 101 of the R.P. Act, nor does it reflect
any cause of action in compliance with Section 83 of the R.P. Act as there
is no pleading of material facts in the petition to demonstrate that, by
reason of alleged defect pleaded, the nomination form of the applicant-
original respondent no.1 (returned candidate’s)was liable to be rejected
and there is no averment in the petition as to the manner in which by
reason of improper acceptance of form along with the affidavit, the result

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of the election has been materially affected.

6. The application is opposed by the election petitioner by filing reply
in the form of affidavit, containing the following objections:

(i) The application is nothing but a desperate attempt on the part of
the returned candidate to prolong the proceedings of the main election
petition.

(ii) It is denied that the election petition is barred by law and the
petition lacks the cause of action.

(iii) That, the grounds raised in paragraph-14, the details of which
elaborated in paragraph no.10 and relief prayed in paragraph no.18 of
election petition clearly fall within the purview of Section 100(1)(d)(i)
and (iv), 100(1)(b) and 101(b) of the R.P. Act and on such grounds,
whether such relief should be granted is a question of trial which is
beyond the scope of Order 7 Rule 11 CPC and Section 86 of the R.P. Act
and therefore, the contention of non-compliance of Section 81 of the R.P.
Act raised in the application is misconceived.

(iv) The election petitioner raised the objection before the returning
officer pertaining to the several columns left blanks in the affidavit of
Form No.26, rendering it an incomplete affidavit and reliance was placed
on the notification dated 13.09.2013 issued by the Election Commission
of India to comply with the directions of the Supreme Court issued in the
case of Resurgence India vs. Election Commission of India, wherein it is
made mandatory for candidates to fill up all columns of Form No.26
Affidavit without leaving any column blank and the blanks in the
affidavit is the ground for returning officer to reject the nomination.
However, the R.O. accepted the incomplete affidavit and erroneously

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rejected the objections raised by the Election Petitioner which clearly
amounts to violation of Section 33(A) of the R.P. Act resulting into
improper acceptance of the nomination of the returned candidate. The
election petitioner has also pleaded in the election petition in relation to
the improper acceptance of nomination form on account of material
suppression in Form No.26 Affidavit and therefore, at the threshold, the
petition cannot be dismissed on this ground and the said issue at the later
stage can be dealt with.

(v) That, the pleadings of commission of corrupt practice are based
on the suppression of assets and liabilities in Form No.26 Affidavit and
all the details regarding suppression of material facts which were not
mentioned in the affidavit are pleaded and supported by documentary
evidence and in this regard, the election petitioner has specifically
pleaded that, due to deliberate suppression and false declaration in Form
No.26 Affidavit, constitute corrupt practice of ‘undue influence’ within
the meaning of Section 123(2) of the R.P. Act and such non-disclosure
cerates impediment in the free exercise of the electoral right due to lack
of information and awareness. Thus, there is compliance of Section 81 of
the Act and law is settled that in a case of false declaration, the court may
presume that such declaration impacts the election.

(vi) That, the Returning Officer while overruling the objections and
accepting the nomination form, observed that, no proofs are produced by
the election petitioner in support of the objections and the defect in
affidavits termed to be clerical mistakes by wrongly relying on the
provision of R.O. Handbook i.e. 6.10.1(iv).

(vii) That, the election petition is filed in strict adherence to the
provisions of the Act and the Rules framed thereunder and as such, the
returned candidate has failed to make out a case of non-compliance of

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Section 81 of the R.P. Act and thereby no grounds exist for granting any
relief under Order 7 Rule 11 CPC with Section 86 of the R.P. Act.
(viii) In view of the aforesaid, it is prayed that, the application may
kindly be dismissed with exemplary cost.

Submissions:

7. Heard learned Senior Counsel Mr. N.D. Nanavaty assisted by
learned counsel Mr. Rohan Lavkumar, Mr. Nisarg Trivedi and Mr. Aditya
Dave for Nanavaty Associates, Mr. Hriday Buch, Mr. Bharat T. Rao, Ms.
Malti Bharat Rao and Mr. Dakshay D. Patel appearing for the respective
parties.

8. Mr. N.D. Nanavaty, learned senior counsel appearing for and on
behalf of the applicant-returned candidate, urged the following
submissions:

(a) That, the election petitioner Lalitbhai Kagathara had filed his
nomination as a candidate of the Indian National Congress and has lost
the election to the Legislative Assembly Seat of 66 – Tankara for the
election held in the year of 2022, by approximately 10,000 votes. The
returned candidate – applicant herein was the candidate of Bharatiya
Janta Party and was declared as winning candidate with 83,274 votes. It
is in this background facts, it is stated that, the election petition proceeds
on a set of general, vague and trivial allegations which do not disclose
any material cause of action. Section 83(1)(a) of the R.P. Act mandates
that the petition shall contain a concise statement of material facts on
which the petitioner relies and disclose full particulars of any corrupt
practice as contemplated under Section 83(1)(b).In the facts of the
present case, on the plain reading of the election petition, the election

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petitioner has not given a concise statement of all material facts and
particulars on this count. In absence of any pleadings, if the trial
proceeds further, it would not be permissible to lead evidence on the
allegations of corrupt practice and no amount of evidence can cure the
defect or lack in the pleadings. Thus, therefore, the election petition is
barred by law and do not disclose the cause of action and in absence of
any triable issue, the election petition is required to be dismissed at the
threshold.

(b) That, by invoking Section 100(1)(b) and Section 100(1)(d)(i) and
(iv) of the R.P. Act, the election is challenged, inter alia, alleging that,
suppression, concealment and non-disclosure of information as regards
to the personal status in relation with the movable and immovable
assets, properties as well as liabilities and position, constitutes corrupt
practice of undue influence as defined under Section 123(b) of the Act
and the result of the election has been materially affected by improper
acceptance of nomination. It is in this background facts, it was
submitted that, the alleged defects in the affidavit Form No.26 are not of
substantial character.

(c) the election petitioner made a general allegation about the
commission of the corrupt practices and bald averments without any
particulars is not sufficient to comply Section 81 of the R.P. Act.

(d) Even in case of non-compliance under 100(1)(d)(iv), they are
require to be plead how the result of the election materially affected and
there is no averment how the alleged deficiencies, incomplete details
etc. has been materially affected the result of the election by improper
acceptance of the nomination or by non-compliance with the provisions
of the R.P. Act and Rules framed thereunder.

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(e) Inconsequential or trivial allegations cannot be the basis of
setting aside the election of a democratically elected candidate, more
particularly; the defects are not of substantial nature.

(f) On the aspect of non-disclosing the criminal antecedents, it was
submitted that, the column was filled with the marking “not applicable”.
It is not the case of the election petitioner that, the criminal cases were
pending against the returned candidate and same has not been disclosed
and no any particulars being pleaded and therefore, it is the boundant
duty of the election petitioner to plead a positive averment of the
negative fact, however, same has not been pleaded.

(g) On the aspect of non-disclosure of details of the assets and
properties and other deficiencies as pointed out, it was submitted that, it
is not the case of the election petitioner that, the false declaration was
being made in the affidavit and having regard to the instructions of the
nomination form, it does not require elaboration on the aspect of loan
and personal status etc. and in addition to that, there is no pleading to the
effect that, how the failure to disclose the necessary information amount
to corrupt practice or improper acceptance of nomination and how it
would materially affected the election of the returned candidate.

9. In such circumstances, learned senior counsel Mr. Nanavaty
submitted that, on plain reading of the petition, there are no averments of
material facts on which the petitioner relies and bare allegations can
never be treated as material facts and by no stretch of imagination,
provision of Section 100(1)(b) and Section 100(1)(d)(i) and (iv) can be
attracted. Thus, therefore, it was submitted that the averments read as a
whole in its entirety do not comply with the provision of Section 81 as
none of the grounds mentioned and sought to be pressed into service falls

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within the purview of Section 100 and in absence of any triable issue, no
purpose would be served to proceed with the trial and when the election
petitioner is not entitled for any relief, the election petition should be
rejected by exercising power under Order 7 Rule 11 CPC read with
Section 86 of the R.P. Act.

10. In support of the aforesaid submissions, the counsel relied upon the
following decisions:

1) Karim Uddin Barbhuiya v. Aminul Haque Laskar and Ors., 2024 SCC
Online SC 509
2) Ajmera Shyam v. Kova Laxmi and ors., 2025 SCC OnLine SC 1723
3) Karam Singh v. Amarjit Singh and Ors., 2025 SCC OnLine SC 2240
4) Udhav Singh v. Madhav Rao Scindia, (1977) 1 SCC 511
5) Hari Shanker Jain v. Sonia Gandhi, (2001) 8 SCC 233
6) Sidik Mahomed Shah v. Mt. Saran, 1929 SCC Online PC 79
7) L. Shivramagowda v. T. M Chandrashekhar, (1999) 1 SCC 666
8) Ram Sukh v. Dinesh Agarwal, (2009) 10 SCC 541
9) Kanimozhi Karunanidhi v. A. Santhana Kumar and Ors., 2023 SCC
OnlineSC 573
10) C. P. John v. Babu M. Paliserry, (2014) 10 SCC 547
11) Shambhu Prasad v. Chandradas Mahant, (2012) 11 SCC 390
12) Mangani Lal Mandal v. Bishnu Deo Bhandari, (2012) 3 SCC 314
13) Dasanglu Pul v. Lupalum Kri, 2023 SCC Online SC 1367
14) Mahendra Tulsiram Bhingardive v. Anil Yeshwant Desai, 2024 SCC
Online Bom 3303
15) Kameng Dolo v. Atum Welly, (2017) 7 SCC 512
16) Ramesh Kumar Khatri v. Durgesh Pathak, 2025 SCC Online Del 695
17) Mohinder Singh v. Durgesh Kumar and Ors., 2025 SCC Online Del 694
18) Samar Singh v. Kedar Nath, 1987 (Supp) SCC 663
19) Dhulaji Somaji Thakor v. Gordhanbhai Hathibhai Patel, CRA 271 of
2022
20) Rahul Vasudevbhai Vyas v. Hemang Yogeshbhai Joshi, EP No. 3 of
2024

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11. Opposing the application, the counsel appearing for and on behalf
of the election petitioner – respondent no.1 herein, Mr. Hriday Buch
made the following submissions:

(a) That, the election petition was filed on 16.01.2023 and the
application seeking dismissal of the election petition under Order 7 Rule
11 CPC is filed on 17.07.2024 and that too, after framing of the issues
which clearly reflects an attempt by the returned candidate to protract
and obstruct the trial proceedings with a view to defeating the purpose
and effective adjudication of the present election petition and therefore,
the application on this count deserves to be dismissed.

(b) The election petition is under Section 100(1)(b) as well as under
Section 100(1)(d) of the R.P. Act. The returned candidate has breached
both these provisions. So far as Section 100(1)(b) is concerned, there is
no need to plead that, the result of the election so far as it concerns a
returned candidate has been materially affected and therefore, a plaint
cannot be rejected in part. In support of this contention, heavy reliance
has been placed on the case of Central Bank of India vs.Prabha Jain
(2023 0 AIR SC 3574). So far as petition qua provision under Section
100(1)(d) is concerned, there are sufficient averments made in the
petition containing a concise statement of material facts with full
particulars. In paras-7, 9, 10 to 10.19, 11, 12 and 13 as well as the
grounds mentioned in paras-14 to 14.18 and cause of action mentioned
in para-15, would show that, the proper contentions are being raised so
as to comply the mandatory provisions of the R.P.Act. Thus, the election
petition discloses all material facts and having regard to the peculiar
facts of the present case, the hyper technical view as canvassed by the
returned candidate, would frustrate the purity of elections and it is the
duty of the court to guard against attempts made by the returned

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candidate to frustrate the election petition when it related to commission
of any corrupt practice and same is require to be proved by leading
evidence and therefore, when substantial compliance with provisions of
the R.P. Act are being made, the election petition cannot be rejected at
threshold on the ground of it being barred by law and absence of cause
of action.

(c) In the election petition, the court has already framed the issues
which clearly indicates that, the contentions now sought to be raised by
the returned candidate are already encompassed within the scope of
adjudication and the question pertaining to the election materially
affected by improper acceptance of nomination and non-compliance
with the statutory provisions and any rules or order made thereunder
would require a full fledge trial and thereafter, the court can arrive at
final conclusion about it and therefore, such an exercise is not
permissible at a preliminary stage and cannot be undertaken at the
threshold.

12. In such circumstances as referred above, Mr. Hriday Buch, learned
counsel submitted that, the election petition discloses all the material
facts and particulars relating to suppression of assets, financials and
discrepancies crept in the Form No.26 Affidavit have been duly
incorporated in the petition and when the election is challenged on the
ground that returned candidate’s own nomination was improperly
accepted, no such pleading is required that how the election has been
materially affected (1973 2 SCC 45- Durai Mutthuswami vs. N.
Nachiappan & Ors.).Accordingly, it was prayed that, the application may
be kindly be dismissed with cost.

13. Mr.Hriday Buch, learned counsel in support of the aforesaid

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contentions, relied on the following citations:
1) 2025 (4) SCC 38 - Central Bank of India vs. Prabha Jain
2) Bhim Rao Baswanth Rao Patil vs. K. Madan Mohan Rao and Ors.
Reported in 2023 (0) AIR SC 3574
3) V. S. Achuthanandan vs. P. J. Francis & Anr. 1999 (3) SCC 737
4) Ponnalla Lakshmaiah vs. Kommuri Pratap Reddy & Ors. 2012 (7) SCC
788
5) Kimneo Haokip Hangshing vs. Kenn Raikhan & Ors. reported in 2024
SCC OnLine SC 2548
6) Kaushik Narsinhbhai Patel vs. M/S. S.J.R. Prime Corporation Pvt. Ltd.
& Ors, Civil Appeal No.8176 of 2022
7) Krishnamoorthi vs. Shivakumar & Ors. 2015 (3) SCC 467.
8) Lok Prahari vs. Union of India & Ors. 2018 (4) SCC 699
9) Rukmini Madegowda vs. The State Election Commission & Ors. 2022
SCC OnLine SC 1218
10) Durai Muthuswami vs. N. Nachiappan & Ors.1973 (2) SCC 45
11) Mairembam Prithviraj vs. Pukhrem Sharatchandra Singh 2017 (2) SCC
487
12) Madiraju Venkata Ramana Raju VS. Peddireddigari Ramachandra
Reddy & Ors. 2018 (14) SCC 1
13) Ahir Meramanbhai Marakhibhai vs. Pabubha Viramabhai Manek
EP/20/2018 - Judgment dated 12.04.2019
14) D. Ramchandran vs. R V Jankiraman & Ors. 1999 (3) SCC 267
15) Ashraf Kokkur vs. K V Abdur Khader & Ors. 2015 (1) SCC 129
16) Kisan Shankar Kathore vs. Arun Dattatray Sawant & Ors. reported in
2014 (14) SCC 162;

14. Mr.Bharat Rao and Mr.Daxay Patel, learned advocates appearing
for and on behalf of the respondent nos.2, 3 and 4 who had filed their
nomination and lost the election, have by adopting the submissions made
by learned counsel Mr.Buch, submitted that the application seeking
rejection of the election petition is being filed with a view to delay the
trial of the election petition and having regard to the irregularities as
pointed out, the issue needs a full-fledged trial and no ground exists for
exercising judicial discretion to reject the election petition at the threshold
under Order VII Rule 11 CPC.

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15. Before adverting to the rival contentions of the parties, it will be
apposite to have a look at the relevant statutory provisions and the settled
position of law propounded by the Supreme Court in its various
judgments:

Statutory provisions of the R.P. Act:

(a) Section 33 authorized the candidate to fill up nomination
paper and how to present it to the Returning Officer.
Section 33(A) is pertaining to the right to information which says
that, a candidate shall furnish the information in relation to the
criminal cases registered against him and particulars of conviction
thereof.

Section 36(4) says that, the R.O. shall not reject any
nomination papers on the ground of any defect which is not of
substantial character. Rule 4(a) of The Conduct of Elections Rules,
1961, mandates that, the candidate or his proposer, as the case may
be, shall at the time of delivering to the Returning Officer, the
nomination paper under sub-section 1 of Section 33 of the Act, also
deliver to him an affidavit sworn by the candidate before the
Magistrate of First Class or a Notary in Form No.26.

(b) Section 80 of the R.P. Act provides that no election shall be
called in question except by an election petition presented in
accordance with the provisions of Part VI. Section 80(A) provides
that, the High Court having jurisdiction to try the election petition.
Section 81 provides that, an election petition may be presented on

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one or more of grounds specified in sub-section 1 of Section 100
and Section 101 of the Act. Section 83 mandates that, an election
petition shall contain a concise statement of the material facts on
which the petitioner relies and shall set forth full particulars of any
corrupt practice that the petitioner alleges. Section 86 authorized
the High Court to dismiss the petition which does not comply with
the provisions of Section 81 or 82 or Section 117. Section 87 says
that, every election petition shall be tried in accordance with the
procedure applicable under the CPC to the trial of suits and the
provisions of Indian Evidence Act be deemed to be applied.

Section 100 provides grounds for declaring election to be
void. Section 101(b) says that, any corrupt practice has been
committed by a returned candidate, the High Court shall declare
the election to be void, whereas, Section 101(d) provides that, the
result of election, in so far as it concerns, the returned candidate
has been materially affected – (i) by the improper acceptance or
any nomination, (ii) by any non-compliance with the provision of
the constitution or of this Act, or of any Rules or Orders made
under this Act, the High Court shall declare the election of the
returned candidate to be void.

(c) Section 123 defines the expression “corrupt practices”. It
says that, the following shall be deemed to be corrupt practices for
the purpose of this Act:
(1) xxxxxxx
(2) Undue influence, that is to say, any direct or indirect
interference or attempt to interference on the part of the candidate

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or his agent or of any other person with free exercise of any
electoral right.

Settled position of law:

(A) In case of Karimuddin Barbhuiya Vs. Aminul Haque Laskar
(2024 SCC Online 509), the Supreme Court in Paras-12, 13, 14 and 15
reiterated the settled legal position with respect to right to contest the
election and to question the legality of the election by way of election
petition and non-compliance of Section 83(1)(A) of the R.P. Act and
rejection of election petition under Order 7 Rule 11 CPC has been
discussed at length.Paras-12, 13, 14, and 15 read thus:

“12. At the outset, it may be noted that as per the well settled legal
position, right to contest election or to question the election by means of
an Election Petition is neither common law nor fundamental right. It is
a statutory right governed by the statutory provisions of the RP Act.
Outside the statutory provisions, there is no right to dispute an election.
The RP 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 Civil Procedure Code are applicable to the
extent as permissible under Section 87 of the RP Act.
13. It hardly needs to be reiterated that in an Election Petition,
pleadings have to be precise, specific and unambiguous, and if the
Election Petition does not disclose a cause of action, it is liable to be
dismissed in limine. It may also be noted that the cause of action in
questioning the validity of election must relate to the grounds specified
in Section 100 of the RP Act. As held in Bhagwati Prasad Dixit
'Ghorewala' v. Rajeev Gandhi and in Dhartipakar Madan Lal
Agarwal v. Rajiv Gandhi, if the allegations contained in the petition do
not set out the grounds as contemplated by Section 100 and do not
conform to the requirement of Section 81 and 83 of the Act, the
pleadings are liable to be struck off and the Election Petition is liable to
be rejected under Order VII, Rule 11 CPC.
14. A beneficial reference of the decision in case of Laxmi Narayan
Nayak Vs. Ramratan Chaturvedi be also made, wherein this Court
upon review of the earlier decisions, laid down following principles
applicable to election cases involving corrupt practices:-

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“5. This Court in a catena of decisions has laid down the
principles as to the nature of pleadings in election cases, the sum
and substance of which being:
(1) The pleadings of the election petitioner in his petition should
be absolutely precise and clear containing all necessary details
and particulars as required by law vide Dharti- pakar Madan
Lal Agarwal v. Rajiv Gandhi, [1987] (Supp.) SCC 93 and Kona
Prabhakara Rao v. M. Seshagiri Rao & Anr., [1982] 1 SCC 442.
(2) The allegations in the election petition should not be vague,
general in nature or lack of materials or frivolous or vexatious
because the Court is empowered at any stage of the proceedings
to strike down or delete pleadings which are suffering from such
vices as not raising any triable issue vide Manphul Singh v.
Surinder Singh, [1974] 1 SCR 52; Kona Prabhakara Rao v. M.
Seshagiri Rao & Anr., [1982] 1 SCC 442 and Dhartipakar
Madan Lal Agarwal v. Rajiv Gandhi, [1987] (Supp.) SCC 93.
(3) The evidence adduced in support of the pleadings should be
of such nature leading to an irresistible conclusion or
unimpeachable result that the allegations made, have been
committed rendering the election void under Section 100 vide
Jumuna Prasad Mukhariya & Others v. Lachhi Ram & Others,
[1955] 1 SCR 608 and Rahim Khan v. Khurshid Ahmed and Oth-
ers, [1974] 2 SCC 660.
(4) The evidence produced before the Court in support of the
pleadings must be clear, cogent, satisfactory, credible and
positive and also should stand the test of strict and scrupulous
scrutiny vide Ram Sharan Yadav v. Thakur Muneshwar Nath
Singh and Others, [1984] 4 SCC 649.
(5) It is unsafe in an election case to accept oral evidence at its
face value without looking for assurances for some surer
circumstances or unimpeachable documents vide Rahim Khan v.
Khurshid Ahmed & Ors., [1975] 1 SCR 643; M. Narayana Rao v.
G. Venkata Reddy & Others, [1977] 1 SCR 490; Lakshmi Raman
Acharya v. Chandan Singh & Ors., [1977] 2 SCR 412 and Ramji
Prasad Singh v. Ram BilasJha and Others, [1977] 1 SCC 260.
(6). The onus of proof of the allegations made in the election
petition is undoubtedly on the person who assails an elec- tion
which has been concluded vide Rahim Khan v. Khurshid Ahmed
and Others, [1975] 1 SCR 643; Mohan Singh v. Bhanwar- lal &
Others, [1964] 5 SCR 12 and Ramji Prasad Singh v. Ram Bilas
Jha and Others, [1977] 1 SCC 260.”

16. In case of Kanimozhi Karunanidhi Vs. A. Santhana Kumar (2023

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SCC Online SC 573), the Supreme Court has elaborately discussed with
regard to the non-compliance of requirement of Section 83(a) of the R.P.
Act and under what circumstances, the election petition can be rejected
by invoking Order 7 Rule 11 CPC. Para-28 of the said decision reads
thus:

“28. The legal position enunciated in afore-stated cases may be
summed up as under:-

i. Section 83(1)(a) of RP Act, 1951 mandates that an Election petition
shall contain a concise statement of material facts on which the
petitioner relies. If material facts are not stated in an Election petition,
the same is liable to be dismissed on that ground alone, as the case
would be covered by Clause (a) of Rule 11 of Order 7 of the Code.

ii. The material facts must be such facts as would afford a basis for the
allegations made in the petition and would constitute the cause of
action, that is every fact which it would be necessary for the
plaintiff/petitioner to prove, if traversed in order to support his right to
the judgement of court. Omission of a single material fact would lead
to an incomplete cause of action and the statement of plaint would
become bad.

iii. Material facts mean the entire bundle of facts which would
constitute a complete cause of action. Material facts would include
positive statement of facts as also positive averment of a negative fact,
if necessary. iv. In order to get an election declared as void under
Section 100(1)(d)(iv) of the RP Act, the Election petitioner must aver
that on account of non-compliance with the provisions of the
Constitution or of the Act or any rules or orders made under the Act,
the result of the election, in so far as it concerned the returned
candidate, was materially affected.

v. The Election petition is a serious matter and it cannot be treated
lightly or in a fanciful manner nor is it given to a person who uses it as
a handle for vexatious purpose.

vi. An Election petition can be summarily dismissed on the omission of
a single material fact leading to an incomplete cause of action, or
omission to contain a concise statement of material facts on which the

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petitioner relies for establishing a cause of action, in exercise of the
powers under Clause (a) of Rule 11 of Order VII CPC read with the
mandatory requirements enjoined by Section 83 of the RP Act.”

17. Having regard to the peculiar facts and circumstances of the case,
the issue falls for my our consideration as to whether pleadings of the
election petition discloses any cause of action and raised tribal issue ?

18. In the application, filed under Order VII Rule 11 of the CPC, the
returned candidate raised the contentions that the election petition lacks in
material fact constituting the cause of action as required under the R.P.
Act and the petition does not fulfill the mandatory requirement of the law,
as it has not contained a concise statement of material fact on which the
election petitioner relies and therefore, does not disclose the tribal issue
or cause of action. The alleged grounds as contained in the petition do not
met out the basic requirement which could constitute the cause of action,
as there is no pleading with full particulars how the improper acceptance
of nomination or non-compliance with the provisions have materially
affected the election and the alleged technical discrepancies pointed out
are not substantially in nature so as to extract Section 100 (1)(b)and
100(1)(d)(i) and (iv) of the R.P. Act and therefore, the petition suffers
from non-compliance of provisions contained under Section 83(1)(b) of
the R.P. Act.

19. It is settled position of law that the power of Order VII Rule 11
CPC can be used in the election petition filed under the R.P. Act. In
Azhar Hussain Vs. Rajiv Gandhi, (AIR 1986 1253), the Apex Court held
and observed that since CPC is applicable, the Court trying the election
petition can act in exercise of the powers of the Court including Order VI
Rule 16 and Order VII Rule 11. The rules say that the plaint shall be

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rejected where it does not disclose the cause of action or where the suit
appears from the statement of the plaint to be barred by any law. In T.
Arivandandam Vs. T.V. Satyapal (AIR 77 Supreme Court 2421), the
Supreme Court while considering the provisions of Order VII Rule 11,
held that if on a meaningful, not formal, reading of the plaint it is
manifestly vexatious and meritless, in the sense of not disclosing of clear
right to sue, the Court should exercise its powers under Order VII, taking
care to see that the ground mentioned therein is fulfilled and if clever
drafting has created the illusion of a cause of action, nip it in the bud at
the first hearing of the examining the party searchingly under Order X
CPC. In the other words, if the petition fails to disclose the cause of
action or barred by law, the court has no option but to reject the plaint as
the law would not permit the plaintiff to unnecessarily protract the
proceedings (Dahiben Vs. Arvindbhai Kalyanji (2020 Supreme Court
Online 563)).

20. In the facts of the present case, the nomination form along with the
affidavit in Form No.26, as mandated under Sections 33 and 33Aof the
R.P. Act and Rule 4A of the Conduct of Election Rules, 1961 was being
filed by the applicant – returned candidate for the Legislative Election,
2022, Seat of 66 – Tankara Assembly Constituency, State of Gujarat. The
election petitioner, who had lost the election had also filed his
candidature on the Indian Congress Platform. The other three
unsuccessful candidates viz. Chhani Musabhai Abrahambhai,
Shaileshbhai Parmar, and Sanjay Jayantilal Bhatasana (Patel), had
contested the election and they have been joined as respondent in the
election petition. In order to appreciate the contentions of the rival
parties, the relevant provisions as referred being reproduced herein:

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21. The election challenge on the ground of it being void under
Sections 100(1)(b) and 100 (1) (i) and (iv) of the RP Act.

22. The first contention raised is that, return candidate indulged into
corrupt practice by not disclosing material information as mandated under
the R.P Act and Rules thereunder. In order to prove allegation under
Section 100(1)(b) of the Corrupt Practice, it is necessary to plead that
what the corrupt practice being committed by the return candidate and
how the undue influence has directly or indirectly interfered with the pre-
exercise of an electoral right. Upon meaningful reading of the plaint, it
appears that, except legal provision and defects mentioned in the affidavit
form 26, nothing being alleged that how the suppression of the
information in the affidavit amounted to “corrupt practices” as defined
under Section 123(b) of the R.P. Act.

23. The object underlying the provision relating to corrupt precise was
explained by the Supreme Court in Patang Rao Kadam Vs. Prithviraj
Sayaji Rao Yadad 2001 SC 1121, which reads thus:

“Fair and free election are essential requisites to maintain the purely of
election and to sustain the faith of the people in election itself in a
democratic setup clean, efficient and benevolent administration are the
essential features of good governance, which in turn depends upon
persons of competence and good character.”

24. In the facts of the present case, 123(2) of the RP Act is relevant to
refer, which says that, the “undue influence” that is to say, any direct or
indirect interference or attempt to interference on the part of the candidate
or his agent or of any other person with the free exercise of any electoral
right.

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25. It is in this context, the election petitioner has alleged that, the
return candidate in his affidavit filed along with nomination paper has
suppressed the necessary information, which amounted to corrupt
practice of undue influence as it deprived the voters to make an informed
and advised choice, as a consequence of which, it would come within the
compartment of direct or indirect interference. The return candidate
alleged that, the election petitioner has not pleaded material facts and
truthful material of corrupt practice as required under Section 83(1)(a),
and how the election of the return candidate has been materially affected
and the alleged discrepancies are not substantial in nature.

26. In order to deal with the issue, it is necessary to examine the
discrepancies as pointed out by the election petitioner and required to be
examined whether the return candidate made substantial compliance by
disclosing necessary information in the nomination form along with the
affidavit.

(a) Non-mentioning of the Financial Year in the income tax details.
Upon reading the affidavit, it appears that, the last 5 years amount as
mandate having been furnished. However, there is no requirement to
furnish the corresponding against the amount being mentioned. Thus, this
cannot be termed to be a breached of the provision Act and Rules
thereunder.

(b) Did not have mark tick, in the column of declaration of pending
criminal proceedings. It appears that, instead of tick mark, the
endorsement was made that, “not applicable”. This is not the case that, at
relevant time criminal case is pending against the petitioner or he has

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been convicted by the competent court. Thus, by endorsing not
applicable, would mean that, no criminal case is pending against the
return candidate. The substance of filling of the column required to be
appreciated.

(c) Failed to provide details of movable properties. In the column of
movable properties, the details have been furnished but bank names
having not been disclosed. It is not the petitioner’s case that, the movable
properties having been not disclosed.

(d) In the column of investment details, the mark has been written
“NIL” and allegation to the effect that, the details of partnership has been
suppressed. On careful examination of column no. 3, it claimed details of
companies, mutual funds, bonds, debentures and other deposits. Thus, it
appears that the details of partnership does not require to disclose.

(e) Non-disclosure of details of the loans advanced by returned
candidate and his wife or HUF. The necessary details having been
furnished but there is no requirement of elaboration of persons of whom
the loan being availed.

(f) Non-disclosure of Toyoto Innova Crysta and weight of the Gold.
In the column, the details of Gold possessed by the returned candidate
and his family members being disclosed and so far as car is concerned,
the same is of partnership firm.

(g) Details of assets having not been fully disclosed. In the form, it
shows that the details of immovable properties having been disclosed
with its survey number and name of the village etc. with the valuation

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also. However, the details of sale deeds having not been disclosed.

(h) In the column of liabilities, the details have been furnished.

(i) In the column of educational qualification – it was disclosed by the
returned candidate that he has educational qualification is SSC Pass. In
the column of higher education, it was kept blank. However, fact remains
that there is no allegation to the effect that, despite of his graduation or
post graduation, the information being not furnished. In other words, the
returned candidate studied up to 10th standard.

27. On the aspect of undue influence, as defined under Section 123(2),
if the returned candidate in his affidavit suppressed the details of criminal
antecedents, assets, liabilities and educational qualification, and despite
of this, the nomination papers being accepted by the Returning Officer,
then, it amounts to corrupt practice of undue influence. In this regard, it is
profitable to refer few judgments of the Supreme Court on this aspect.

28. In the case of Union of India Vs. Asstn. for Democratic Reforms
(2002 (5) SCC 294), it was held that voter has fundamental rights to
information about the contesting candidates. Pursuant to the judgment,
Section 33A was inserted in the R.P. Act providing for right to additional
information with respect to pending criminal cases and conviction
thereof. In this regard, the Election Commission of India issued a press
note on 28.06.2002 whereby there was a reference to the judgment of
Union of India Vs. Asstn. for Democratic Reforms (supra), in which it
was held that information on five aspects has to be provided to the
voters namely:

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(i) whether the candidate is convicted / acquitted / discharge of any
criminal offence in the past – if any, whether he is punished with
imprisonment or fine,

(ii) Prior to 6 months of filing of nomination, whether the candidate is
accused in any pending case and in which charge is framed or cognizance
is taken by the court of law.

(iii) The assets (immovable, movable, bank balance etc.,) of a candidate
and of his spouse and that of dependants.

(iv) Liabilities if any, particularly there are any over dues of any
financial institution or government dues,

(v) the educational qualification of the candidate.

29. So far as ground declaring election to be void on the allegation of
corrupt practice is concerned, upon meaningful reading of the petition, I
am of the prima-facie view that, the returned candidate had substantially
disclosed the information with regard to pendency of criminal cases,
assets, liabilities and educational qualifications. So far as other
discrepancies pointed out are not of a substantial character amounting to
corrupt practice of undue influence as defined under Section 123(2). The
statutory provisions Section 36(4) of the R.P. Act provides that, the
Returning Officer shall not reject any nomination paper on the ground of
any defect which is not of a substantial character.

I also do not found any pleadings to the effect that how the alleged
discrepancies as pointed out, it affect directly or indirectly interference or
attempt to interference with the free exercise of any electoral right. It

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appears that, the election petitioner has invoked Section 100(1)(b)
simplicitor alleging that, the non-disclosure or suppression amount to
corrupt practice. It is settled position of law that there must be disclosure
of only material information. Recently, Supreme court in the case of
Shri Karikho Kri (2024) SCR 394, held and observed that, non-
disclosure of each and every assets owned by the candidate would not
amount to a defect, much less defect of substantial characters. In another
case, the Supreme Court in the case of Ajmera Shyam Vs. Kova Laxmi
(2025) SCC on-line 1723, it was observed that, the Court must keep in
mind that declaring an election void, solely for non-disclosure of assets,
if it is lacks substantially, could undermine the validity of the popular
mandate. To nullify the choice of the people on a minor technicality
and insignificant non-disclosure of asses by the elected candidate,
would have serious repercussions on the democratic process. Thus,
while the court plays a vital role in upholding the rule of law, utmost
care must have been taken to ensure that the election results are not
invalidated based on subjective interpretations and minor or technical
irregularities that do not substantially impinge on the law, since
unwarranted interference with the electoral process and over tuning
election results can erode public trust in democratic institution. It was
further observed that nullifying the election results and over turning
the people’s verdict through cold, clinical analysis and tools should be
avoided, unless the electoral process has been vitiated by gross
irregularities, that undermine electoral integrity. Court room’s
intervention should only when there are clear and blatant violations of
the law that threatened fairness, legality and constitutional principles.

30. In light of the settled legal position and applying the same to the

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facts of the present case, it emerges from the record that, the necessary
information were being furnished and supplied in the affidavit form no.
26 and there was substantial compliance being made by the returned
candidate. On plain reading of the petition, it appears that, nothing being
pleaded that there was false disclosure of the assets or the candidate had
not at all disclosed the particulars of the assets and other things like
liabilities, educational qualifications and pendency of criminal cases.
There is no pleading to the effect that despite of pendency of criminal
cases, the particulars were not being disclosed and/or furnished in the
affidavit. On the aspect of educational qualification, nothing being
pleaded about higher qualification of the returned candidate. In such
circumstances, the alleged discrepancies and defects pointed out in the
election petition are not of substantial character and alleged deficiency
whatever pointed out would not be amounted or constituted as “corrupt
practice”, that is to say, any direct or indirect interference with the free
exercise of electoral right and therefore, the basic and primary facts
attracting the provisions of Section 100(1)(b), having not been pleaded in
the petition.

31. Reverting to the present application, filed under Order VII Rule
11(a) and (d), seeking rejection of election petition for non-disclosure of
cause of action and having regard to the pleadings of the petition, is to be
barred by law as there is non-compliance of Section 81 of the R.P. Act.
The election petitioner by invoking Section 100(1)(d)(i) and (iv), pleaded
that the election of the returned candidate to be declared void as there was
improper acceptance of nomination and non-compliance with the
provisions of the R.P. Act and Rules thereunder which has materially
affected the result of the election.

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32. The specific contentions being raised in the application filed under
Order 7 Rule 11 CPC that Section 83A of the R.P. Act mandates that
petition shall contain a concise statement of material facts on which the
petitioner relies and must set forth full particulars of the corrupt practice
and in the present case, there is no pleading in the petition that by virtue
of the alleged improper acceptance of the nomination or non-compliance
with the provisions, the election of the returned candidate – applicant has
been materially affected and in absence of such pleading, the election
petition required to be dismissed at the threshold.

33. Before adverting to the submissions, I will refer the few
pronouncement of the Supreme Court on the issue of what is meaning of
“material facts” require to be pleaded in the petition and when election is
declared to be void by invocation of Section 100(1)(d).:

(a) In Ramshukh Vs. Dinesh Agrawal (2009 (10) SCC 541), it
has been held by the Supreme Court that where the election is challenged
on any of the grounds under Section 100(1)(d), it must be specifically
averred and pleaded in the petition that the election of the returned
candidate has been materially affected, apart from proving that fact in the
trial in the petition. In absence of such pleading in the petition, the
petitioner cannot be permitted to adduce evidence to the effect that the
election of the returned candidate was materially affected.

(b) In Magnilal Mandal Vs. Bishnu Deo Bhanderi (2012 (3)
SCJ 884), it has been held that the suppression of information or
furnishing the wrong information in the affidavit with the nomination
paper is not a specific ground for challenging election under Section

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100(1)(d)(iv), unless it is pleaded that such suppression of the
information materially affected the result of the election of returned
candidate.

(c) In Kanimozhi Karunanidhi v. A. Santhana Kumar and
Ors., 2023 SCC OnlineSC 573, the Supreme Court after referring the
provisions of the R.P. Act, observed that it is necessary for the election
petitioner to aver specifically in what manner the result of the election in
so far as it concerns the returned candidate was materially affected due to
omission on the part of the returning officer.
(d) In Karim Uddin Barbhuya Vs. Aminul Haque Laskar
(2024 SCC Online 509), the Supreme Court held in Paras-22 to 24 as
under:

“22. So far as the ground contained in clause (d) of Section 100(1) of
the Act, with regard to improper acceptance of the nomination of the
Appellant is concerned, there is not a single averment made in the
Election Petition as to how the result of the election, in so far as the
appellant was concerned, was materially affected by improper
acceptance of his nomination, so as to constitute a cause of action under
Section 100(1)(d)(i) of the Act.

Though it is true that the Election Petitioner is not required to state as
to how corrupt practice had materially affected the result of the
election, nonetheless it is mandatory to state when the clause (d)(i) of
Section 100(1) is invoked as to how the result of election was materially
affected by improper acceptance of the nomination form of the
Appellant.

23. As transpiring from the Election Petition, the respondent no. 1
himself had not raised any objection in writing against the nomination
filed by the Appellant, at the time of scrutiny made by the Returning
Officer under Section 36 of the Act. According to him, he had raised
oral objection with regard to the education qualification stated by the
Appellant in the Affidavit in Form-26. If he could make oral objection,

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he could as well, have made objection in writing against the acceptance
of nomination of the Appellant, and in that case the Returning Officer
would have decided his objection under sub-section (2) of Section 36,
after holding a summary inquiry.

Even if it is accepted that he had raised an oral objection with regard to
the educational qualification of the Appellant before the Returning
Officer at the time of scrutiny, the respondent no. 1 has failed to make
averment in the Election Petition as to how Appellant's nomination was
liable to be rejected by the Returning Officer on the grounds mentioned
in Section 36(2) of the Act, so as to make his case fall under clause (d)
(i) of Section 100(1) that there was improper acceptance of the
nomination of the Appellant. The non-mentioning of the particulars as
to how such improper acceptance of nomination had materially affected
the result of the election, is apparent on the face of the Election Petition.

24. As stated earlier, in Election Petition, the pleadings have to be
precise, specific and unambiguous. If the allegations contained in
Election Petition do not set out grounds as contemplated in Section 100
and do not conform to the requirement of Section 81 and 83 of the Act,
the Election Petition is liable to be rejected under Order VII, Rule 11 of
CPC.

An omission of a single material fact leading to an incomplete cause of
action or omission to contain a concise statement of material facts on
which the Election petitioner relies for establishing a cause of action,
would entail rejection of Election Petition under Order VII Rule 11 read
with Section 83 and 87 of the RP Act.”

(e) In Harishankar Jain Vs. Soniya Gandhi (AIR 2001
Supreme Court 3689), while interpreting the expression “material fact”,
the Supreme Court held that Section 83 of the R.P. Act provides that the
election petition must contain a concise statement of material fact on
which the petitioner relies and further he must also set forth full
particulars of any corrupt practice. This section is mandatory as material
facts shows that the fact necessary to formulate a complete cause of

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action must be stated. Omission of a single material fact leads to an
incomplete cause of action and the statement of claim becomes bad. The
function of particulars is to present as full picture of the cause of action
which such information in detail so as to make the opposite party
understand the case, he will have to meet.

(f) In Virendranath Gautam Vs. Satpal (Laws (Supreme
Court) 2006 -12-77; Jitu Patnaik Vs. Sanatan Mohakud (AIR 2012
Supreme Court 913), the Supreme Court held that “material” means
fundamental, vital, basic, cardinal, central, crucial, decisive, essential,
pivotal, indispensable, elementary, or primary. Thus, it was held that the
expression “material facts” would mean those facts upon which the party
relies for his claim or defence. What particulars are material facts would
depend upon the facts of each case and no rule of universal application
can be laid down. However, it is essential that all the basic and material
facts which must be proved at the trial by the party to establish existence
of the cause of action or defence are material facts and must be stated in
the pleading by the party.

34. Reverting to the facts of the present case and upon meaningful
reading of the petition, in my view, the averments made in the election
petition are simple production of statutory provision of law and narration
of the alleged discrepancies found in the affidavit in Form No.26. In the
preceding paras-25 to 29 of this judgment, it has been held and observed
that the returned candidate – applicant herein on the aspect of criminal
antecedents, assets, liabilities, and education qualification, made
substantial disclosure in affidavit of Form No.26 and whatever the
deficiencies and discrepancies pointed out and mentioned in the petition

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are not of substantial character. So far as non-compliance of Section 83 of
the R.P. Act is concerned, having regard to the facts of the case and upon
reading of the petition, it appears that, except the narration of the
statutory provisions of the R.P. Act and the defects found in the affidavit
of Form No.26, nothing being pleaded in the petition to demonstrate that
improper acceptance of the nomination paper has resulted in materially
affecting the result of the election and on this aspect, I am of the view
that, the petition does not disclose any cause of action. In other words, the
petition lacks in “material facts”, constituting the cause of action and the
pleadings are not in conformity with the Sections 83 and 86 of the R.P.
Act.

35. It is the contention of the election petitioner that the petition qua
the provisions of Section 100(1)(b), the petition set forth specific
pleadings that non-disclosure as pointed out amounts to corrupt practice. I
do not find any substance in the contention about the maintainability of
the petition under Section 100(1)(b) as on this aspect, I have assigned
sufficient reasons in the preceding paragraphs of this judgment.

36. It is the next contention of the election petitioner that the
requirement to plead and prove that the election result was materially
affected by improper acceptance of nomination arise only when the
election is challenged on the ground of improper acceptance of a
nomination other than of returned candidate. In support of this
contention, heavy reliance has been placed on the case of Durai
Muththuswamy Vs. N. Nachippan and others (1973 (2) SCC 45);
Mairemban Prithviraj Vs. Pukhrem Saratchandra Singh (2017 (2) SCC
487). In the case of Mairemban, the Supreme Court while referring the

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case of Durai Swamy held and observed that cases in which they were
only two contesting candidates, in such event, it is not necessary to allege
that the result of the election in so far as it concerns the returned
candidate has been materially affected. Paras-22, 23 and 26 are relevant
to refer which reads as under:

“22. The facts, in brief, of the case of Durai Muthuswami are that the
Petitioner in the election petition contested in the election to the Tamil
Nadu Legislative Assembly from Sankarapuram constituency. He
challenged the election of the First Respondent on the grounds of
improper acceptance of nomination of the returned candidate, rejection
of 101 postal ballot papers, ineligible persons permitted to vote, voting
in the name of dead persons and double voting. The High Court
dismissed the election petition by holding that the Petitioner failed to
allege and prove that the result of the election was materially affected by
the improper acceptance of the nomination of the First Respondent as
required by Section 100 (1) (d) of the Act. The Civil Appeal filed by the
Petitioner therein was allowed by this Court in Durai Muthuswami
(supra) in which it was held as follows:
“3. Before dealing with the question whether the learned Judge
was right in holding that he could not go into the question
whether the 1st respondent's nomination has been improperly
accepted because there was no allegation in the election petition
that the election had been materially affected as a result of such
improper acceptance, we may look into the relevant provisions of
law. Under Section 81 of the Representation of the People Act,
1951 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. It is not necessary to refer to
the rest of the section. Under Section 83(1) (a), insofar as it is
necessary for the purpose of this case, an election petition shall
contain a concise statement of the material facts on which the
petitioner relies. Under Section 100(1) if the High Court is of
opinion—
(a) that on the date of his election a returned candidate was not
qualified, or was disqualified, to be chosen to fill the seat under
the Constitution or this Act ….
(b)-(c) * * *

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(d) that the result of the election, insofar as it concerns a returned
candidate, has been materially affected—
(i) by the improper acceptance of any nomination, or
(ii)-(iii) * * *
the High Court shall declare the election of the returned candidate to
be void. Therefore, what Section 100 requires is that the High Court
before it declares the election of a returned candidate is void should be
of opinion that the result of the election insofar as it concerns a
returned candidate has been materially affected by the improper
acceptance of any nomination. Under Section 83 all that was necessary
was a concise statement of the material facts on which the petitioner
relies. That the appellant in this case has done. He has also stated that
the election is void because of the improper acceptance of the 1st
respondent's nomination and the facts given showed that the 1st
respondent was suffering from a disqualification which will fall
under Section 9-A. That was why it was called improper acceptance.
We do not consider that in the circumstances of this case it was
necessary for the petitioner to have also further alleged that the result
of the election insofar as it concerns the returned candidate has been
materially affected by the improper acceptance of the 1st respondent's
nomination. That is the obvious conclusion to be drawn from the
circumstances of this case. There was only one seat to be filled and
there were only two contesting candidates. If the allegation that the 1st
respondent's nomination has been improperly accepted is accepted the
conclusion that would follow is that the appellant would have been
elected as he was the only candidate validly nominated. There can be,
therefore, no dispute that the result of the election insofar as it
concerns the returned candidate has been materially affected by the
improper acceptance of his nomination because but for such improper
acceptance he would not have been able to stand for the election or be
declared to be elected. The petitioner had also alleged that the election
was void because of the improper acceptance of the 1st respondent's
nomination. In the case of election to a single-member constituency if
there are more than two candidates and the nomination of one of the
defeated candidates had been improperly accepted the question might
arise as to whether the result of the election of the returned candidate
had been materially affected by such improper reception. In such a
case the question would arise as to what would have happened to the
votes which had been cast in favour of the defeated candidate whose
nomination had been improperly accepted if it had not been accepted.
In that case it would be necessary for the person challenging the
election not merely to allege but also to prove that the result of the

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election had been materially affected by the improper acceptance of the
nomination of the other defeated candidate. Unless he succeeds in
proving that if the votes cast in favour of the candidate whose
nomination had been improperly accepted would have gone in the
petitioner's favour and he would have got a majority he cannot succeed
in his election petition. Section 100(1)(d)(i) deals with such a
contingency. It is not intended to provide a convenient technical plea in
a case like this where there can be no dispute at all about the election
being materially affected by the acceptance of the improper
nomination. “Materially affected” is not a formula that has got to be
specified but it is an essential requirement that is contemplated in this
section. Law does not contemplate a mere repetition of a formula. The
learned Judge has failed to notice the distinction between a ground on
which an election can be declared to be void and the allegations that
are necessary in an election petition in respect of such a ground. The
petitioner had stated the ground on which the 1st respondent's election
should be declared to be void. He had also given the material facts as
required under Section 83(1)(a). We are, therefore, of opinion that the
learned Judge erred in holding that it was not competent for him to go
into the question whether the 1st respondent's nomination had been
improperly accepted.” (Underlining ours) It is clear from the above
judgment that there is a difference between the improper acceptance of
a nomination of a returned candidate and the improper acceptance of
nomination of any other candidate. There is also a difference between
cases where there are only two candidates in the fray and a situation
where there are more than two candidates contesting the election. If
the nomination of a candidate other than the returned candidate is
found to have been improperly accepted, it is essential that the election
Petitioner has to plead and prove that the votes polled in favour of such
candidate would have been polled in his favour. On the other hand, if
the improper acceptance of nomination is of the returned candidate,
there is no necessity of proof that the election has been materially
affected as the returned candidate would not have been able to contest
the election if his nomination was not accepted. It is not necessary for
the Respondent to prove that result of the election in so far as it
concerns the returned candidate has been materially affected by the
improper acceptance of his nomination as there were only two
candidates contesting the election and if the Appellant’s nomination is
declared to have been improperly accepted, his election would have to
be set aside without any further enquiry and the only candidate left in
the fray is entitled to be declared elected.”
“26. Mere finding that there has been an improper acceptance of the
nomination is not sufficient for a declaration that the election is void

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under Section 100 (1) (d). There has to be further pleading and proof
that the result of the election of the returned candidate was materially
affected. But, there would be no necessity of any proof in the event of
the nomination of a returned candidate being declared as having been
improperly accepted, especially in a case where there are only two
candidates in the fray. If the returned candidate’s nomination is
declared to have been improperly accepted it would mean that he could
not have contested the election and that the result of the election of the
returned candidate was materially affected need not be proved further.
We do not find substance in the submission of Mr. Giri that the
judgment in Durai Muthuswami (supra) is not applicable to the facts of
this case. The submission that Durai Muthuswami is a case of
disqualification under Section 9-A of the Act and, so, it is not
applicable to the facts of this case is also not correct. As stated supra,
the election petition in that case was rejected on the ground of non-
compliance of Section 100 (1) (d). The said judgment squarely applies
to this case on all fours. We also do not find force in the submission
that the Act has to be strictly construed and that the election cannot be
declared to be void under Section 100 (1) (d) without pleading and
proof that the result of the election was materially affected. There is no
requirement to prove that the result of the election of the returned
candidate is materially affected once his nomination is declared to
have been improperly accepted.”

In the facts of the present case, there were five candidates who had
contested the election and therefore, the observations made in the Durai
Swamy’s case would not rescue to the case of the election petitioner.

37. For the reasons recorded, in the facts of the present case, the
returning officer had examined the nomination form and affidavit and
accepted without any defect of substantive character. In the facts of the
present case, there is no allegation of furnishing wrong information and
therefore, the petition in the present case, lacks the pleadings of material
facts, in the form of cause of action and further there is non-compliance
of Section 83 of the R.P. Act.

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38. Accordingly, this application is allowed and the Election Petition 2
of 2023 is rejected in terms of Order VII Rule 11(a) and (d) of the CPC.
Any connected application/s stands disposed of.

(ILESH J. VORA,J)
P.S. JOSHI

Original copy of this order has been signed by the Hon'ble Judge.
Digitally signed by: PALLAV SUBHASHCHANDRA JOSHI(HC00177), Principal Pvt. Secretary, at High Court of Gujarat on 02/04/2026 11:16:52

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