Supreme Court of India
PONNALA LAKSHMALAHversusKOMMURI PRATAP REDDY & ORS.
- Citation
- 2012 INSC 274
- Decided
- 6 July 2012
- Disposal
- Dismissed
- Bench
- T S THAKUR
Holding
The election petition disclosed a cause of action and the lack of a properly formatted affidavit under Section 83(1) is not a fatal ground for dismissal; it is a curable defect.
Summary
The appellant, a returned candidate, appealed a High Court order that refused to dismiss an election petition filed by the respondent alleging irregularities in vote counting. The Supreme Court examined whether the petition disclosed a cause of action and could be struck out at the threshold, and whether the lack of an affidavit in the prescribed Form 25, as required by the proviso to Section 83(1) of the Representation of the People Act, 1951, was a fatal defect. The Court held that the petition did disclose a cause of action and therefore could not be dismissed in limine. It further ruled that non‑compliance with the affidavit requirement is not a ground for dismissal under Section 86; such a defect is curable and may be remedied during the trial. Consequently, the appeal was dismissed and the High Court’s order upheld.
Issues considered
- The petition's adequacy: does it disclose a cause of action sufficient to preclude dismissal in limine under Order VII Rule 11 CPC?
- Whether the absence of an affidavit in the format prescribed by Rule 94(A) of the Conduct of Election Rules, as required by the proviso to Section 83(1) of the Representation of the People Act, 1951, constitutes a ground for dismissal under Section 86 of the Act.
- Whether a defect in the verification or format of the affidavit is curable and can be dealt with at trial.
- Whether the appellant could raise the affidavit defect for the first time before the Supreme Court.
Legislation cited
- Code of Civil Procedure, 1908s. Order VII Rule 11, s. Order VI Rule 15(4), s. Order VI Rule 16
- Conduct of Election Rules, 1961s. Rule 94(A)
- Representation of the People Act, 1951s. 117, s. 81, s. 82, s. 83(1) proviso, s. 86
Subjects
election petitioncause of actiondismissal in limineaffidavit requirementRepresentation of the People Actcurable defectelectoral disputetechnical vs substantive pleading
Judgment
[2012] 6 S.C.R. 851
PONNALA LAKSHMALAH A
v.
KOMMURI PRATAP REDDY & ORS.
(Civil Appeal No. 4993 of 2012)
JULY 6, 2012
B
[T.S. THAKUR AND GYAN SUDHA MISRA, JJ.J
Representation of the People Act, 1951 - s. 83 and
proviso to s. 83(1) - Election petition - Returned candidate
seeking its dismissal in Jimine on the ground that it did not C
disclose cause ·of action - High Court refusing to dismiss the
petition in limine - On appeal, new plea that the petition was
liable to be dismissed as it was not supported by affidavit in
terms of proviso to s. 83(1) - Held: High Court was right in
refusing to dismiss the petition in limine - The petition o
discloses a cause of action and gives rise to triable issues -
The petition also contained statement of material facts as
required u/s. 83 - The plea of absence of affidavit in terms of
proviso to s. 83(1) cannot be permitted to be raised before
Supreme Court for the first time - Also, the absence of E
affidavit in a given format by itself does not cause any
prejudice to the returned candidate and the defect is curable
- Breach of proviso to s. 83(1) is not a valid ground for
dismissal of an election petition at the threshold - The
requirement of filing an affidavit in given format should not F
be exalted to the status of a statutory mandate, by a judicial
interpretation - Format of affidavit is not a matter of substance
- Jn view of the fact that electoral process is vulnerable to
misuse, the courts should not adopt a technical approach
towards resolution of electoral disputes - Code of Civil G
Procedure, 1908 - Or. VII r. 11 - Conduct of Election Rules,
1961 - r. 94 (1) rlw. Form 25 - Plea - New plea - Interpretation
of Statute.
Election petition was filed against the returned
851 H
852 SUPREME COURT REPORTS [2012] 6 S.C.R.
A candidate on the ground that there was variance between
total number of votes polled and votes counted. The
petition was contested. High Court refused to dismiss the
petition in limine holding that the petition disclosed a
cause of action and gave rise to triable issues.
B
In appeal to this court the appellant (returned
candidate) contended that the petition was liable to be
dismissed on the grounds that it was deficient as it did
not disclose material facts and particulars; and that the
C petition was not accompanied by an affidavit in Form 25
terms of proviso to Section 83(1) of the Act, as the same
was mandatory.
Dismissing the appeal, the Court
o HELD: 1.1 There is no error in the order passed by
the High Court refusing to dismiss the petition in limine
on the ground that the same discloses no cause of
action. The averments made in the election petition if
taken to be factually correct, as they ought to for
E purposes of determining whether a case for exercise of
powers under Order VII Rule 11 CPC has been made out,
disclose a cause of action. The High Court did not,
therefore, commit any error much less an error resulting
in miscarriage of justice, to warrant interference by this
F Court in exercise of its extra-ordinary powers under
Article 136 of the Constitution. [Para 8) [865-E-G]
1.2 Courts are competent to dismiss petitions not
only on the ground that the same do not comply with the
provisions of Sections 81, 82 & 117 of the Representation
G of the People Act, 1951 but also on the ground that the
same do not disclose any cause of action. The
expression "cause of action" has not been defined either
in the Civil Procedure Code or elsewhere and is more
easily understood than precisely defined. While
H examining whether a plaint or an election petition
PONNALA LAKSHMALAH v. KOMMURI PRATAP 853
REDDY & ORS.
discloses a cause of action, the Court has a full and A
comprehensive view of the pleading. !Averments made in
I
the plaint or petition cannot be read out of context or in
isolation. They must be taken in totality for a true and
proper understanding of the case set up by the plaintiff.
[Paras 3 and 4] [862-E-G; 863-C-D] B
Shri Udhav Singh v. Madhav Rao Scindia (1977) 1 SCC
511 :1976 (2) SCR 246; Church of North India v. Lavajibhai
Ratanjibhai and Ors. (2005) 10 SCC 760: 2005 (3) SCR
1037;Liverpool and London S.P. and I. Asson. Ltd. v. M. V c
SeaSuccess I. and Anr. (2004) 9 SCC 512: 2003 (5) Suppt
SCR 851 - relied on.
Om Prakash Srivastava v. Union of India and Anr. (2006)
6 SCC207: 2006 (3) Suppl. SCR 80; H.D. Revanna v. G.
Puttaswamyand Ors. (1999) 2 SCC 217: 1999 (1) SCR 198 - D
referred to.
1.3 The success.ful candidates charged with
commission of corrupt practices or other illegalities and
irregularities that constitute grounds for setting aside E
their elections seek dismissal of the- petitions in limine on
grounds that are more often than not specious, in an
attempt to achieve a two fold objective. First, it takes a
chance of getting the election petition dismissed on the
ground of it being deficient, whether the deficiency be in F
terms of non-compliance with the provisions of Sections
81, 82 & 117 of the Act or on the ground that it does not
disclose a cause of action. The second and the more
predominant objective is that the trial of the election gets
delayed which in itself sub-serve the interests of the
successful candidate. Dilatory tactics are adopted with a G
view to prevent or at least delay a trial of the petition
within a reasonable time frame. While a successful
candidate is entitled to defend his election and seek
dismissal of the petition on ground legally available to
him, the prolongation of proceedings by prevarication is H
854 SUPREME COURT REPORTS [2012] 6 S.C.R.
A not conducive to ends of justice that can be served only
by an early and speedy disposal of the proceedings. The
Courts have, therefore, to guard against such attempts
made by parties ·who often succeed in dragging the
proceedings beyond the term for which they have been
B elected. 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 cm a plain reading of the petition no cause
of action is disclosed. [Para 12) [867-G-H; 868-A-E]
C 2.1 The High Court has, in the present case, held that
the material facts constituting the foundation of the case
set up by the election petition have been stated in the
election petition. That being so, the requirement of
Section 83 of the Act viz. that "the petition shall contain
D a concise statement of material facts" has been satisfied.
The question of dismissing the petition on that ground
also therefore did not arise. The High Court committed
no wrong in coming to that conclusion. [Para 12) [867-C-
D] .
E Raj Narain v. Indira Nehru Gandhi and Anr. (1972) 3
SCC 850:1972 (3) SCR 841; H.D. Revanna v. G.
Puttaswamy and Ors.(1999) 2 SCC 217: 1999 (1) SCR 198;
V.S. Achuthanandan v.P.J. Francis and Anr. (1999) 3 SCC
737: 1999 (2) SCR 99; Mahendra Pal v. Ram. Dass Ma/anger
F and Ors. (2000) 1 SCC261 1999 (4) Suppl. SCR 170;
Sardar Harcharan Singh Brar v. Sukh Darshan Singh and
Ors. (2004) 11 SCC 196: 2004 (5)Suppl. SCR 682; Harkirat
Singh v. Amrinder Singh (2005) 13 SCC 511: 2005 (5)
Suppl. SCR 817; Umesh Chal/iyi/ v. K.P.Rajendran (2008)
G 11 SCC 740: 2008(3) SCR 457; Virender Nath Gautam v.
Satpal Singh and Ors. (2007) 3 SCC 617:2006 (10) Suppl.
SCR 413 - relied on.
2.2 The burden which lies on an election petitioner
to prove the allegations made by him in the election
H petition whether the same relate to commission of any
PONNALA LAKSHMALAH v. KOMMURI PRATAP 855
REDDY & ORS.
corrupt practice or proof of any other ground urged in A
support of the petition has to be discharged by him at the
trial. There is no dilution of that obligation when the court
refuses to dismiss a petition at the threshold. All that the
refusal to dismiss the petition implies is that the appellant
has made out a case for the matter to be put to trial. B
Whether or not the petitioner will succeed at the trial
remains to be seen till the trial, is concluded. [Para 12]
[867-E-F]
3.1 The plea relating to defective verification of the
petition is not allowed to be taken by this Court for the C
first time in appeal. The ground that the petition was liable
to be dismissed in absence of affidavit in terms of proviso
to Section 83(1) of the Act, was not raised in the
application filed by the appellant before the High Court
nor was it argued at the bar. The High Court had in that D
view no occasion to deal with the contention that is
sought to be advanced before this Court for the first time.
There is no reason why the appellant should not have
urged the point before the High Court, if he was serious
about its implications. [Paras 14 and 15] [869-C-D; 870- E
A-B]
Ba/wan Singh v. Prakash Chand and Ors. (1976) 2 SCC
440: 1976 (3) SCR 335 - relied on.
3.2 Tlie absence of an affidavit or an affidavit in a
form other than the one stipulated by the Rules does not F
by itself cause any prejudice to the successful candidate
so long as the deficiency is cured by the election
petitioner by filing a proper affidavit when directed to do
so. In the absence of any provision making breach of the
proviso to Section 83(1 ), a valid ground of dismissal of G
an election petition at the threshold, the requirement of
filing an affidavit in a given format should not be exalted
by a judicial interpretation to the status of a statutory
mandate. A petition that raises triable issues need not,
therefore, be dismissed simply because the affidavit filed H
856 SUPREME COURT REPORTS [2012] 6 S.C.R.
A by the petitioner is not in a given format no matter the
deficiency in the format has not caused any prejudice to
the successful candidate and can be cured by the
election petitioner by filing a proper affidavit. [Paras 21
and 23] [874-D-E; 875-F-H]
Murarka Radhey Shyam Ram Kumar v. Roop Singh
Rathore and Ors. AIR 1964 SC 1545: 1964 SCR 573 -
followed.
Sardar Harcharan Singh Brar v. Sukh Darshan Singh
and Ors. (2004) 11 sec 196: 2004 (5) Suppl. SCR 682; G.
C Mallikarjunappa and Anr. v. Shamanur Shiv Ashankappa and
Ors. (2001) 4 sec 428; F.A. Sapa and Ors. v. Singora and
Ors. (1991) 3 SCC 375: 1991 (2) SCR 752; Dr. Vijay Laxmi
Sadho v. Jagdish (2001) 2 sec 247: 2001 (1) SCR 95; T.
Phungzathang v. Hangkhanlian and Ors. (2001) 8 SCC 358:
D 2001 (2) Suppl. SCR 256; Manohar Joshi v. Nitin Bhaurao
Patil (1996) 1 sec 169: 1995 (6) Suppl. SCR 421; H.D.
Revanna v. G. Puttaswamy Gowda and Ors. (1999) 2 SCC
217: 1999 (1) SCR 198 - relied on.
M. Kama/am v. Dr. V.A. Syed Mohammed (1978) 2
E SCC 659: 1978 (3) SCR 446; R.P. Moidutty v. P. T. Kunju
Mohammad (2000) 1 SCC 481; V. Narayanswamy v. C.P.
Thirunavukkarasu (2000) 2 SCC 294: 2000 (1) SCR 292;
Kama/nath v. Sudesh Verma (2002} 2 SCC 410: 2002 (1)
SCR 63; Mithilesh Kumar Pandey v. Baidyanath Yadav and
F Ors. (1984) 2 SCC 1: 1984 (2) SCR 278; Ravinder Singh v.
Janmeja Singh (2000) 8 SCC 191: 2000 (3) Suppl. SCR
331; Ram Sukh v. Dinesh Aggarwal (2009) 10 SCC 541:
2009 (14) SCR 836 - referred to.
G 3.3 The format of the affidavit is at any rate not a
matter of substance. What is important and at the heart
of the requirement is whether the election petitioner has
made averments which are testified by him on oath, no
matter in a form other than the one that is stipulated in
H the Rules. [Para 22) [874-C, DJ
PONNALA LAKSHMALAH v. KOMMURI PRATAP 857
REDDY & ORS.
4. The election of a successful candidate is not lightly A
interfered with by the Courts. The Courts generally lean
in favour of the returned candidates and place the onus
of proof on the person challenging the end result of an
electoral contest. That approach is more in the nature of
a rule of practice than a rule of law and should not be B
unduly stretched beyond a limit. While it is important to
respect a popular verdict and the courts ought to be slow
in upsetting the same, it is equally important to maintain
the purity of the election process. An election which is
vitiated by reason of corrupt practices, illegalities and c
irregularities enum~rated in Sections 100 & 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 D
the statute without being unduly hyper-technical in its
approach & without being oblivious of the ground
realities. Experience has shown that the electoral
process is, despite several safeguards taken by the
Statutory Authorities concerned, often vitiated by use of
means, factors and considerations that are specifically E
forbidden by the statute. The electoral process is
vulnerable to misuse, in several ways, in the process
distorting the picture in which the obvious may be
completely different from the real. Electoral reforms is,
therefore, a crying need of our times but has remained a F
far cry. If the Courts also adopt a technical approach
towards the resolution of electoral disputes, the
confidence of the people not only in the democratic
process but in the efficacy of the judicial determination
of electoral disputes will be seriously undermined. [Para G
22] [874-F-H; 875-A-D]
T.A. Ahammed Kabeer v. A.A. Azeez and Ors. (2003) 5
SCC 650:2003 (3) SCR 511; P. Malaichami v. M. Andi
Ambalam and Ors. (1973) 2 sec 170: 1973 (3) SCR 1016 - H
referred to.
858 SUPREME COURT REPORTS [2012] 6 S.C.R.
A Case Law Reference:
2006 (3) Suppl. SCR 80 Referred to Para 3
1976 (2) SCR 246 Relied on Para 4
2005 (3) SCR 1037 Relied on Para 5
B
2003 (5) Suppl. SCR 851 Relied on Para 6
1999 (1) SCR 198 Referred to Para 7
Relied on Para 10
c
1972 (3) SCR 841 Relied on Para 8
1999 (2) SCR 99 Relied on Para 10
1999 (4) Suppl. SCR 170 Relied on Paras 10
D and 16
2004 (5) Suppl. SCR 682 Relied on
. Para 10
2005 (5) Suppl. SCR 817 Relied on Para 11
2008 (3) SCR 457 Relied on Para 11
E
2006 (10) Suppl. SCR 413 Relied on Para 11
1978 (3) SCR 446 Referred to Para 13
c2000) 1 sec 481 Referred to Para 13
F 2000 (1) SCR 292 Referred to Para 13
2002 (1) SCR 63 Referred to Para 13
1984 (2) SCR 278 Referred to Para 13
G 2000 (3) Suppl. SCR 331 Referred to Para 13
2009 (14) SCR 836 Referred to Para 13
1976 (3) SCR 335 Relied on Para 14 ·
c2001) 4 sec 428 Relied on Para 18
H
PONNALA lAKSHMALAH v. KOMMURI PRATAP 859
REDDY & ORS.
1991 (2) SCR 752 Relied on Para 19 A
2001 (1) SCR 95 Relied on Para 19
1964 SCR 573 Followed Para 20
2001 (2) Suppl. SCR 256 Relied on Para 20 B
1995 (6) Suppl. SCR 421 Relied on Para 20
1999 (1) SCR 198 Relied on Para 20
2003 (3) SCR 511 Referred to Para 22
c
1973 (3) SCR 1016 Referred to Para 22
CIVIL APPELLATE JURISDICTION : Civil Appeal No.
4993 of 2012.
From the Judgment & Order dated 22.04.2010 of the High D
Court of Andhra Pradesh at Hyderabad in E.A. No, 873 of 2009
in E.P. No. 13 of 2009.
P.P. Rao, Y. Raja Gopala Rao, Y. Vismai Rao, Apeksha
Sharan, Manoj Jain, Hitendra Nath Rath, Utsav sidhu, E
Abhimanyu Tewari for the Appellant.
Ranjit Kumar, Jaideep Gupta, A.D.N. Rao, Annam
Venkatesh, Keerthi Kiran Kota, Neelam Jain, D. Mahesh Babu,
Amit K. Nain, Anu Gupta, Chandra Mohan Anisetty, T. Anamika,
G.N. Reddy for the Respondents. F
The Judgment of the Court was delivered by
T.S. THAKUR, J. 1. Leave granted.
2. The short question that falls for determination in this G
appeal by special leave is whether the High Court of Andhra
Pradesh was right in holding that the election petition filed by
respondent No.1 against the appellant who happens to be the
successful candidate in the election to the 98-Jangaon
Assembly Constituency in the State of Andhra Pradesh, H
860 SUPREME COURT REPORTS [2012] 6 S.C.R.
A disclosed a cause of action and could not therefore be
dismissed at the threshold. The factual matrix in which the
election petition came to be filed by the respondent has been
set out at length by the High Court, hence need not be
recounted except to the extent the same is essential for the
B disposal of the appeal. The High Court has, while holding that
the averments made in the election petition raised triable issues
and disclosed a cause of action, observed:
"23. As seen from the statement showing voter turn out
report in connection with General Elections, 2009 to 98-
c J angaon Legislative Assembly Constituency on
16.04.2009, the total votes polled, as reported by the
Returning Officer, is shown as 1,50,678 from 251 polling
stations. Whereas the final result sheet in Form no.20, total
valid votes is shown as 1,51,411. So, from this document,
D it is clear that prima facie a proper counting had not taken
place. Therefore, prima facie it can be said to be an
irregularity on the part of the Returning Officer involved in
dereliction of the duty. Similarly, there is a specific
allegation that out of 653 postal ballots, the election
E petitioner would have secured more than 300 votes, if ·
properly counted, and out of the said votes, 142 votes
which were validly polled in favour of the election petitioner,
were illegally declared as invalid and another 52 votes
polled in favour of the election petitioner were counted in
F favour of the first respondent, and 45 invalid votes were
illegally counted in favour of the first respondent. Since the
margin between the elected candidate and the nearest
rival is only 236 votes, had postal ballots been counted
properly, then there would be a possibility of materially
G affecting the result of the election in so far as the returned
candidate. So, under no stretch of imagination, it can be
said that the allegations in the Election Petition are vague.
24. No doubt, it is true that in view of the decision of the
Apex Court, recounting of the votes cannot be resorted to
H
PONNALA LAKSHMALAH v. KOMMURI PRATAP 861
REDDY & ORS. [T.S. THAKUR, J.]
as a matter of course and every endeavour should be A
made to protect the secrecy of the ballots. But, at the same
time suspicion of the correctness of the figures mentioned
in the crucial documents of the statement showing voters'
turn out report and Form-20-final result sheet, where there
is a variance between total number of votes polled and B
votes counted. The two basic requirements laid down by
the.Apex Court, to order recounting, are: (a) the election
petition seeking recount of the ballot papers must contain
an adequate statement of the material facts on which the
allegations of irregularity or illegality in counting are c
founded; and (b) on the basis of evidence adduced in
support of the allegations, the Tribunal must be prima facie
satisfied that in order to decide the dispute and to do
complete and effectual.justice between the parties, making
of such an order is imperatively necessary. D
Therefore, the questions-whether counting of votes by
the officials is in accordance with the rules and regulations
and also whether the votes polled in favour of the election
petitioner were rejected as invalid or there was improper
counting of votes polled in favour of the returned candidate, E
are required to be decided after adducing evidence only.
The allegation that because of the improper counting of
postal ballots polled in favour of the election petitioner, the
election petitioner could not secure 300 votes, if accepted
as true at this stage, it would materially affect the election F
result because the margin of votes polled between returned
candidate and his nearest rival is very narrow. In the
Election Petition, the allegation with regard to irregularity
or illegality in counting of votes, which affects election of
the returned candidate materially, has been clearly stated G
in the Election Petition. It is not a vague or general
allegation that some irregularities or illegalities have been
committed in counting. Similarly, there is allegation that in
the first instance, after totalling of all votes, the election
petitioner secured a majority of 44 votes and the same was H
862 SUPREME COURT REPORTS [2012] 6 S.C.R.
A informed to the electronic media, and some TV channels
telecasted the same immediately. A Compact Disc (CD)
is also field along with the Election Petition, in support of
the said allegation. It is also alleged that none of the
contested candidates filed any petition for recounting of
B votes within maximum period of five minutes after the
election petitioner was declared to have secured a majority
of 44 votes. Therefore, there is prima facie material to
show that there was irregularity or illegality in counting of
votes which resulted in affecting materially the election of
c the returned candidate, so as to proceed further with the
Election Petition. As, at this stage, prima facie case for
recounting, as seen from the allegations in the Election
Petition, is made out, the pleadings cannot be struck off
as unnecessary. Therefore, rejecting the Election Petition
D · at this stage does not arise."
3. Having carefully gone through the averments made in
the election petition, we are of the opinion that the election
petition sets out the requisite material facts that disclose a
cause of action and gives rise to triable issues, which can not
E be given a short shrift by taking an unduly technical view as to
the nature of the pleadings. There is no denying the fact that
Courts are competent to dismiss petitions not only on the
ground that the same do not comply with the provisi9ns of
Sections 81, 82 & 117 of the Representation of the People Act,
F 1951 but also on the ground that the same do not disclose any
cause of action. The expression "cause of action" has not been
defined either in the Civil Procedure Code or elsewhere and
is more easily understood than precisely defined. This Court
has in Om Prakash Srivastava v. Union of India & Anr. (2006)
G 6 SCC 207 attempted an explanation of the expression in the
following words:
"The expression "cause of action" has acquired a judicially
settled meaning. In the restricted sense "cause of action"
means the circumstances forming the infraction of the right
H or the immediate occasion for the reaction. In the wider
PONNALA LAKSHMALAH v. KOMMURI PRATAP 863
REDDY & ORS. [T.S. THAKUR, J.]
sense, it means the necessary conditions for the A
maintenance of the suit, including not only the infraction of
the right, but also the infraction coupled with the right itself.
Compendiously, as noted above the expression means
every fact, which it would be necessary for the plaintiff to
prove, if traversed, in order to support his right to the B
judgment of the Court. Every fact, which is necessary to
be proved, as distinguished from every piece of evidence,
which is necessary, to prove each fact. comprises in
"cause of action"."
4. It is equally well settled that while examining whether a C
plaint or an election petition discloses a cause of action, the
Court has a full and comprehensive view of the pleading.
Averments made in the plaint or petition .cannot be read out of
context or in isolation. They must be taken in totality for a true
and proper understanding of the case set up by the plaintiff. This D
Court has in Shri Udhav Singh v. Madhav Rao Scindia (1977)
1 sec 511 given a timely reminder of the principle in the
following words:
'We are afraid, this ingenious method of construction after E
compartmentalisation, dissection, segregation and
inversion of the language of the paragraph, suggested by
Counsel, runs counter to the cardinal canon of
interpretation, according to which, a pleading has to be
read as a whole to ascertain its true import. It is not F
permissible to cull out a sentence or a passage and to
read it out of the context, in isolation. Although it is the
substance and not merely the form that has to be looked
into, the pleading has to be construed as it stands without
addition or subtraction of words, or change of its apparent G
grammatical sense. The intention of the party concerned
is to be gathered, primarily, from the tenor and terms of
his pleading taken as a whole."
5. Reference may also be made to the decision of this
Court in Church of North India v. Lavajibhai Ratanjibhai and H
864 SUPREME COURT REPORTS [2012] 6 S.C.R.
A Ors. (2005) 10 SCC 760, wherein this Court reiterated that for
purposes of determining whether the plaint discloses a cause
of action, the Court must take into consideration the plaint as
a whole. It is only if even after the plaint is read as a whole,
that no cause of action is found discernible that the Court can
B exercise its power under Order VII Rule 11 of the CPC.
6. To the same effect is the decision of this Court in
Liverpool & London S.P. and I. Asson. Ltd. v. M. V. Sea
Success I. & Anr. (2004) 9 SCC 512; where this Court held
C that the disclosure of a cause of action in the plaint is a question
of fact and the answer to that question must be found only from
the reading of the plaint itself. The Court trying a suit or an
election petition, as the position is in the present case, shall
while examining whether the plaint or the petition discloses a
cause of action, to assume that the averments made in the
D plaint or the petition are factually correct. It is only if despite the
averments being taken as factually correct, the Court finds no
cause of action emerging from the averments that it may be
justified in rejecting the plaint. The following paragraph from the
decision is apposite in this regard:
E
"Whether a plaint discloses a cause of action or not is
essentially a question of fact. But whether it does or does
not must be found out from reading the plaint itself. For the
said purpose the averments made in the plaint in their
F entirety must be held to be correct. The test is as to whether
if the averments made in the plaint are taken to be correct
in its entirety, a decree would be passed."
7. We may also gainfully refer to the decision of this Court
in H.D. Revanna v. G. Puttaswamy & Ors. (1999) 2 SCC 217,
G where this Court held that an election petition can be dismissed
for non-compliance of Sections 81, 82 and 117 of the
Representation of the People Act, 1951 t::>ut it may also be
dismissed if the matter falls within the scope of Order VI Rule
16. or Order VII Rule 11 of the CPC. A defect in the verification
H of the election petition or the affidavit accompanying the
PONNALA LAKSHMALAH v. KOMMURI PRATAP 865
REDDY & ORS. (T.S. THAKUR, J.]
election petition was held to be curable, hence, not sufficient A
to justify dismissal of the election petition under Order VII Rule
11 or Order VI Rule 16 of CPC. The following passage in this
regard is instructive:
" ..... the relevant provisions in the Act are very specific.
B
Section 86 provides for dismissal of an election petition
in limine for non-compliance with Sections 81, 82 and 117.
Section 81 relates to the presentation of an election
petition. It is not the case of the appellant before us that
the requirements of Section 81 were not complied with..... C
Sections 82 and 117 are not relevant in this case.
Significantly, Section 86 does not refer to Section 83 and
non-compliance with Section 83 does not lead to
dismissal under Section 86. This Court has laid down that
non-compliance with Section 83 may lead to dismissal of
the petition if the matter falls within the scope of Order 6 D
Rule 16 or Order 7 Rule 11 CPC. °Defect in verification of
the election petition or the affidavit accompanying· the
election petition has been held to be curable and not fatal."
8. Applying the above principles to the case at hand, we E
do not see any error in the order passed by the High Court
refusing to dismiss the petition in lirnine on the ground that the
same discloses no cause of action. The averments made in
the election petition if taken to be factually correct, as they ought
to for purposes of determining whether a case for exercise of F
powers under Order VII Rule 11 has been made out, do in our
opinion, disclose a cause of action. The High Court did not,
therefore, commit any error much less an error resulting in
miscarriage of justice, to warrant interference by this Court in
exercise of its extra-ordinary powers under Article 136 of the G
Constitution.
9. There was some debate at the bar as to whether the
petition discloses material facts and particulars and if it does
not whether it could be dismissed on the ground of the petition
being deficient, hence no petition in the eyes of Law. That H
866 SUPREME COURT REPORTS [2012] 6 S.C.R.
A argument, need not detain us for long, as the legal position on
the subject is well-settled by a long line of decisions rendered
by this Court. In Raj Narain v. Indira Nehru Gandhi & Anr.
(1972) 3 SCC 850, this Court held that if allegations regarding
a corrupt practice do not disclose the constituent parts of the
·s corrupt practice alleged, the same will not be allowed to be
proved and those allegations cannot be amended after the
period of limitation for filing an election petition but the Court
may allow particulars of any corrupt practice alleged in the
petition to be amended or amplified. Dealing with the rules of
C pleadings, this Court observed:
"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
D words of a provisiqn of law, generally speaking, there lies
a juristic principle. It is the duty of the court to ascertain that
principle and implement it."
10. The Court further held that just because a corrupt
E practice has to be strictly proved does not mean that a pleading
in an election petition must be strictly construed. Even in a
criminal trial, a defective charge did not necessarily result in the
acquittal of the accused unless it was shown that any such
defect had prejudiced him. The Court held that it cannot refuse
F to enquire into allegations made by the election petitioner
merely because the election petitioner or someone who
prepared his brief did not know the language of the law. The
principle was reiterated by this Court in H.D. Revanna v. G.
Puttaswamy & Ors. (1999) 2 SCC 217, V.S. Achuthanandan
G v. P.J. Francis & Anr. (1999) 3 SCC 737, Mahendra Pal v.
Ram Dass Ma/anger & Ors. (2000) 1 SCC 261, Sardar
Harcharan Singh Brar v. Sukh Darshan Singh & Ors. (2004)
11 sec 196.
11. In Harkirat Singh v. Amrinder Singh (2005) 13 SCC
H 511, this Court once again stated the distinction between
PONNALA LAKSHMALAH v. KOMMURI PRATAP 867
REDDY & ORS. [T.S. THAKUR, J.]
material facts and particulars and declared that material facts A
are primary and basic facts which must be pleaded by the
plaintiff while particulars are detajls in support of those facts
meant to amplify, refine and embellish the material facts by
giving distinct touch to the basic contours of a picture already
drawn so as to make it more clear and informative. To the same s
effect are the decisions of this court in Umesh Challiyil v. K.P.
Rajendran (2008) 11 SCC 740, Virender Nath Gautam v.
· Satpal Singh & Ors. (2007) 3 SCC 617.
12. The High Court has, in the present case, held that the
material facts constituting the foundation of the case set up by C
the election petition have been stated in the election petition.
That being so, the requirement of Section 83 of the Act viz. that
"the petition shall contain a concise statement of material facts"
has been satisfied. The question of dismissing the petition on
that ground also therefore did not arise. The High Court in our D
opinion committed no wrong in coming to that conclusion. We
need only emphasise that the burden which lies on an election
petitioner to prove the allegations made by him in the election
petition whether the same relate to commission of any corrupt
practice or proof of any other ground urged in support of the E
petition has to be discharged by him at the trial. There is no
dilution of that obligation when the court refuses to dismiss a
petition at the threshold. All that the refusal to dismiss the
petition implies is that the appellant has made out a case for
the matter to be put to trial. Whether or not the petitioner will F
succeed at the trial remains to be seen till the trial is concluded.
Even so on a somewhat erroneous understanding of the law
settled by this Court, the successful candidates charged with
commission of corrupt practices or other illegalities and
irregularities that constitute grounds for setting aside their G
elections seek dismissal of the petitions in limine on grounds
that are more often than not specious, in an attempt to achieve
a two fold objective. First, it takes a chance of getting the
election petition dismissed on the ground of it being deficient,
whether the deficiency be in terms of non-compliance with the H
868 SUPREME COURT REPORTS [2012] 6 S.C.R.
A provisions of Sections 81, 82 & 117 of the Act or on the ground
that it does not disclose a cause of action. The second and the
more predominant objective is that the trial of the election gets
delayed which in itself sub-serve the interests of the successful
candidate. Dilatory tactics including long drawn arguments on
B whether the petition discloses a cause of action or/and whether
other formalities in the filing of the petition have been complied
with are adopted with a view to prevent or at least delay a trial
of the petition within a reasonable time trame. While a
successful candidate is entitled to defend his election and seek
c dismissal of the petition on ground legally available to him, the
prolongation of proceedings by prevarication is not conducive
to ends of justice that can be served only by an early and
speedy disposal of the proceedings. The Courts have,
therefore, to guard against such attempts made by parties who
0 often succeed in dragging the proceedings beyond the term for
which they have been elected. 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
E is disclosed. Beyond that note of caution, we do not wish to
say anything at this stage for it is neither necessary nor proper
for us to do so.
13. Mr. Rao next argued that the election petition was liable
to be dismissed also on the ground that the same was not
F accompanied by an affidavit which the election petitioner was
obliged to file in terms of proviso to Section 83 (1) of the Act.
He urged that the use of the word 'shall' in the proviso made it
mandatory for the petitioner to support the averments in the
election petition with an affidavit in Form 25 prescribed under
G Rule 94 (A) of the Conduct of Election Rules, 1961. Inasmuch
as an affidavit had not been filed in the prescribed format, the
election petition, argued Mr. Rao, was no election petition in
the eye of law and was, therefore, liable to be dismissed in
limine. Reliance in support of his submissions was placed by
H Mr. Rao upon the decisions of this Court in M. Kama/am v. Dr.
•
PONNALA LAKSHMALAH v. KOMMURI PRATAP 869
REDDY & ORS. [T.S. THAKUR, J.]
V.A. Syed Mohammed (1978) 2 SCC 659, R.P. Moidutty v. A
P. T. Kunju Mohammad (2000) 1 SCC 481, V. Narayanswamy
v. C.P. Thirunavukkarasu (2000) 2 SCC 294, Kamalnath v.
Sudesh Verma (2002) 2 SCC 410, Mithilesh Kumar Pandey
v. Baidyanath Yadav & Ors. (1984) 2 SCC 1, Ravinder Singh
v. Janmeja Singh (2000) 8 SCC 191, Ram Sukh v. Dinesh 8
Aggarwal (2009)· 10 SCC 541.
14. On behalf of the respondent, it was argued by Mr. Ranjit
Kumar that the non-filing of an affidavit in terms of proviso to
Section 83(1) of the Act was never taken as a ground before
the High Court in the application which the High court has C
decided in terms of the impugned order nor was the point ever
argued at the bar. The appellant cannot, therefore, urge that
point before this Court for the first time. Relying upon the
decision of this Court in Balwan Singh v. Prakash Chand & Ors.
(1976) 2 SCC 440, Mr. Kumar argued that a plea relating to D
defective verification of the petition was not allowed to be taken
by this Court for the first time in appeal. It was further submitted
by Mr. Kumar that an affidavit in support of the election petition
had indeed been filed by the respondent-petitioner in which the
averments and the grounds alleged by the respondent were set E
out and reiterated on oath. An affidavit filed under Order VI Rule
15(4) of the CPC supporting the averments made in the election
petition has also been filed including averments made in para
12 to 15 of the election petition. It was urged that two affidavits
mentioned above sufficiently complied with the requirements of F
Section 83 of the Act and Rule 94(A) of The Conduct of Election
Rules 1961. He submitted that even assuming that there was
any deficiency in the affidavit sworn by the respondent, not
being in the format in which the same was required to be filed,
yet the same was not fatal to the election petition inasmuch as G
the Court trying the petition can at any stage of the proceedings
direct the election petitioner to file a proper affidavit if it finds
that the one already filed is deficient in any way ..
15. There is considerable merit in the submission inade
by Mr. Kumar. The ground urged by Mr. Rao was not admittedly . H
870 SUPREME COURT REPORTS (2012] 6 S.C.R.
A raised in the application filed by the appellant before the High
Court nor was it argued at the bar. The High Court had in that
view no occasion to deal with the contention that is sought to
be advanced before us for the first time. There is no reason
why the appellant should not have urged the point before the
s High Court, if he was serious about its implications.
16. Even otherwise the question whether non-compliance
of the proviso to Section 83 (1) of the Act is fatal to the election
petition is no longer res-integra in the light of a three-Judge
Bench decision of this Court in Sardar Harcharan Singh Brar
C v. Sukh Darshan Singh & Ors. (2004) 11 SCC 196. In that
case a plea based on a defective affidavit was raised before
the High Court resulting in the dismissal of the election petition.
In appeal against the said order, this Court held that non-
compliance with the proviso to Section 83 of the Act did not
D attract an order of dismissal of an election petition in terms of
Section 86 thereof. Section 86 of the Act does not provide for
dismissal of an election petition on the ground that the same
does not comply with the provisions of Section 83 of the Act. It
sanctions dismissal of an election petition for non-compliance
E of Sections 81, 82 and 117 of the Act only. Such being the
position, the defect if any in the verification of the affidavit filed
in support of the petition was not fatal, no matter the proviso to
Section 83(1) was couched in a mandatory form. This Court
observed:
F "14. So is the case with the defect pointed out by the High
Court in the affidavit filed in support of the election petition
alleging corrupt practice by the winning candidate. The
proviso enacted to Sub-section (1) of Section 83 of the Act
is couched in a mandatory form inasmuch as it provides
G that a petition alleging corrupt practice shall be
accompanied by an affidavit in the prescribed form in
support of the allegations of such corrupt practice and the
particulars thereof. The form is prescribed by Rule 94-A.
But at the same time, it cannot be lost sight of that failure
H to comply with the requirement as to filing of an affidavit
PONNALA LAKSHMALAH v. KOMMURI PRATAP 871
REDDY & ORS. [T.S. THAKUR, J.]
cannot be a ground for dismissal of an election petition in A
limine under Sub-section (1) of Section 86 of the Act. The
point is no more res integra and is covered by several
decisions of this Court. Suffice it to refer to two recent
decisions namely G. Mallikarjunappa and Anr. v.
Shamanur Shivashankarappa and Ors. and Dr. Vijay Laxmi B
Sadho v. Jagdish, both three-Judges Bench decisions,
wherein the learned Chief Justice has spoken for the
Benches. It has been held that an election petition is liable
to be dismissed in limine under Section 86(1) of the Act if
the election petition does not comply with either the c
provisions of "Section 81 or Section 82 or Section 117 of
the RP Act". The requirement of filing an affidavit along with
an election petition, in the prescribed form, in support of
allegations of corrupt practice is contained in Section
83(1) of the Act. Non-compliance with the provisions of D
Section 83 of the Act, however, does not attract the
consequences envisaged by Section 86(1) of the Act.
Therefore, an election petition is not liable to be dismissed
in limine under Section 86 of the Act, for alleged non-
compliance with provisions of Section 83(1) or (2) of the
Act or of its proviso. The defect in the verification and the E
affidavit is a curable.defect. What other consequences, if
any, may follow from an allegedly "defective" affidavit, is
required to be judged at the trial of an election petition but
Section 86(1) of the Act in terms cannot be attracted to
such a case. F
17. More importantly the Court held that if the High Court
had found the affidavit to be defective for any reason it should
have allowed an opportunity to the election petitioner to remove
the same by filing a proper affidavit. This Court observed:
G
"15. Having formed an opinion that there was any defect
in the affidavit, the election petitioner should have been
allowed an opportunity of removing the defect by filing a
proper affidavit. Else the effect of such failure should have
been left to be determined and adjudicated upon at the H
872 SUPREME COURT REPORTS [2012] 6 S.C.R.
A trial, as held in G. Mallikarjunappa and Anr. 's case
(supra)."
18. To the same effect is the decision of a three-Judge
bench of this Court in G. Mallikarjunappa and Anr. v.
Shamanur Shiv Ashankap'pa and Ors. (2001) 4 SCC 428. The
8 High Court had in that case also dismissed the election
petitions taking the view that there had been non-compliance
with Rule 94-A of the Conduct of Elections Rules, 1961
inasmuch as the affidavit filed in support of the allegations of
corrupt practices with the election petitions did not comply with
C the requirements of the format as prescribed in Form 25.
Allowing the appeal this Court observed:
"An election petition is liable to be dismissed in limine
under Section 86( 1) of the Act if the election petition does
D not comply with either the provisions of "Section 81 or
Section 82 or Section 117 of the RP Act". The requirement
of filing an affidavit along with an election petition, in the
prescribed form, in support of allegations of corrupt
practice is contained in Section 83(1) of the Act. Non-
compliance with the provisions of Section 83 of the Act,
E
however, does not attract the consequences envisaged by
Section 86(1) of the Act. Therefore, an election petition is
not liable to be dismissed in limine under Section 86 of
the Act, for alleged non-compliance with provisions of
Section 83(1) or (2) of the Act or of its proviso. The defect
F
in the verification and the affidavit is a curable defect. What
other consequences, if any, may follow from an allegedly
"defective" affidavit, is required to be judged at the trial of
an election petition but Section 86(1) of the Act in terms
cannot be attracted to such a case."
G
19. A similar view was taken by a three-Judge Bench of.
this Court in F.A. Sapa and Ors. v. Singora and Ors. (1991) 3
SCC 375 and in Dr. Vijay Laxmi Sadho v. Jagdish (2001) 2
sec 247.
H
PONNALA LAKSHMALAH v. KOMMURI PRATAP 873
REDDY & ORS. [T.S. THAKUR, J.]
20. We may also refer to a Constitution Bench decision of A
this Court in Murarka Radhey Shyam Ram Kumar v. Roop
Singh Rathore & Ors. (AIR 1964 SC 1545) where this Court
held that a defective affidavit is not a sufficient ground for
summary dismissal of an election petition as the provision of
Section.83 of the Act are not.mandatorily to be complied with B
nor did the same make a petition invalid as an affidavit can be
allowed to be filed at a later stage or so. Relying upon the
decision of a three-Judge Bench of this Court in T.
Phungzathang v. Hangkhanlian and Ors. (2001) 8 SCC 358
this Court held that non-compliance with Section 83 is not a c
ground for dismissal of ~n election petition under Section 86
and the defect, if any, is curable as has been held by a three-
Judge Bench of this Court in Manohar Joshi v. Nitin Bhaurao
Patil (1996) 1 SCC 169 and H.D. Revanna v. G. Puttaswamy
Gowda & Ors. (1999) 2 SCC 217. This Court observed: D
" ....... If the view of the High Court in the order impugned
before us is to be upheld, an election petitioner having filed
an affidavit fully satisfying the requirement of Section 83(1)
proviso and Rule 94-A in all respects but having made an
omission in the copy of the affidavit delivered to the E
respondent would be placed in a position worse than an
election petitioner whose original affidavit filed with the
election petition· itself did not satisfy the requirement of
Section 83(1) proviso read with Rule 94-A. This could not
have been the lntendment of law. Such an interpretation F
would, to say the least, make a mockery of justice. That
non-compliance with Section 83 cannot be a ground for
dismissal of the. election petition under Section 86 and the
defect, if any, Is curable, has been the view taken by a
three-Judge Bench in Manohar Joshi v. Nitin Bhaurao Patil G
and also in H.D. Revanna v. G. Puttaswamy Gowda
wherein all the decisions available till then have been
considered. In Kamal Narain Sarma v. Dwarka Prasad
Mishra affidavit was sworn in before the Clerk of Court
attached with the Office of the District Judge empowered H
874 SUPREME COURT REPORTS (2012) 6 S.C.R.
A by the District Judge under Section 139(c) of the Code of
Civil Procedure for the purpose of administration of oaths
on affidavits made under the Code of Civil Procedure. The
Election Tribunal allowed a fresh affidavit to be filed in
place of such affidavit, treating it to be defective. On the
B matter reaching this Court, a Constitution Bench held that
an extreme and technical view was not justified. The
affidavit was held to be proper and the second affidavit was
held to be not necessary."
21. The decisions relied upon by Mr. Rao do not in terms
C deal with a comparable situation to the one this Court was
dealing with in Sardar Harcharan Singh Brar's case (supra).
The format of the affidavit is at any rate not a matter of
substance. What is important and at the heart of the requirement
is whether the election petitioner has made averments which
D are testified by him on oath, no matter in a form other than the
one that is stipulated in the Rules. The absence of an affidavit
or an affidavit in a form other than the one stipulated by the
Rules does not by itself cause any prejudice to the successful
candidate so long as the deficiency is cured by the election
E petitioner by filing a proper affidavit when directed to do so.
22. There is no denying the fact that the election of a
successful candidate is not lightly interfered with by the Courts.
The Courts generally lean in favour of the returned candidates
F and place the onus of proof on the person challenging the end
result of an electoral contest. That approach is more in the
nature of a rule of practice than a rule of law and should not be
unduly stretched beyond a limit. We say so because while it is
important to respect a popular verdict and the courts ought to
G be slow in upsetting the same, it is equally important to maintain
the purity of the election process. An election which is vitiated
by reason of corrupt practices, illegalities and irregularities
enumerated in Sections 100 & 123 of the Act cannot obviously
be recognised and respected as the decision of the majority.
of the electorate. The Courts are, therefore, duty bourid to
H
PONNALA LAKSHMALAH v. KOMMURI PRATAP 875
REDDY & ORS. [T.S. THAKUR, J.]
examine the allegations whenever the same are raised within A
the framework of the statute without being unduly hyper-technical
in its approach & without being oblivious of the ground realities.
Experience has shown that the electoral process is, despite
several safeguards taken by the Statutory Authorities
concerned, often vitiated by use of means, factors and B
considerations that are specifically forbidden by the statute.
The electoral process is vulnerable to misuse, in several ways,
in the process distorting the picture in which the obvious may
be completely different from the real. Electoral reforms is,
therefore, a crying need of our times but has remained a far c
cry. If the Courts also adopt a technical approach towards the
.resolution of electoral disputes, the confidence of the people
not _only in the democratic process but in the efficacy of the
judicial determination of electoral disputes will be seriously
undermined. This Court has in several pronouncements while D
emphasising the need to leave the elections untouched,
reiterated, the need to maintain the purity of elections and
thereby strengthening democratic values in this country. The
decisions of this Court in T.A. Ahammed Kabeer v. A.A. Azeez
& Ors. (2003) 5 SCC 650 and P. Malaicharrii v. M. Andi E
Ambalam and Ors. (1973) 2 sec 170 express a similar
sentiment.
23. Suffice it to say, that in the absence of any provision
making breach of the proviso to Section 83(1), a valid ground
of dismissal of an election petition at the threshold, we see no F
reason why the requirement of filing an affidavit in a given
format should be exalted by a judicial interpretation to the status
of a statutory mandate. A petition that raises triable issues need
not, therefore, be dismissed simply because the affidavit filed
by the petitioner is not in a given format no matter the G
deficiency in the format has not caused any prejudice to the
successful candidate and can be cured by the election
petitioner by filing a proper affidavit. In the result, this appeal
fails and is dismissed with costs assessed at Rs.25000/-.
K.K.T. Appeal dismissed. H
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