Holding

The Symbols Order is an order made under the Representation of the People Act, 1951 and the petition complied with s. 83; the High Court’s order striking out paragraphs 4‑18 was unlawful, and the appeal is allowed.

Summary

The appellant Roop Lal challenged the election of Nachhattar Singh to the Punjab Legislative Assembly on the ground that the Election Commission’s re‑allocation of the party symbol ‘hand’ to the respondent violated the Election Symbols (Reservation & Allotment) Order, 1968 and the provisions of the Representation of the People Act, 1951. The Punjab & Haryana High Court struck out paragraphs 4‑18 of the petition, holding that the petition failed to disclose material facts and that the Symbols Order was not made under the Act. The Supreme Court held that the Symbols Order is indeed an order made under the Act, that the petition satisfied the requirement of a concise statement of material facts under s. 83, and that the High Court was not empowered to delete those paragraphs. Consequently, the appeal was allowed and the petition was ordered to proceed.

Issues considered

Whether the Election Symbols (Reservation & Allotment) Order, 1968 is an order made under the Representation of the People Act, 1951
Whether the change of symbol allocation by the Returning Officer, in compliance with Election Commission directions, constitutes a breach of s. 100(1)(d)(iv) of the Act and grounds for setting aside the election
Whether the election petition complied with the requirement of a concise statement of material facts under s. 83 of the Act
Whether the High Court was justified in striking out paragraphs 4‑18 of the petition under Order VI r.16 of the Code of Civil Procedure, 1908
Whether the High Court could direct further and better particulars under Order VI r.5 of the Code

Legislation cited

Code of Civil Procedure, 1908s. Order VII r.11, s. Order VI r.16, s. Order VI r.2(1), s. Order VI r.4, s. Order VI r.5
Conduct of Elections Rules, 1961s. 10, s. 5
Representation of the People Act, 1951s. 100(1)(d)(iv), s. 123(7), s. 169, s. 83, s. 86, s. 87

Subjects

election petitionsymbols orderRepresentation of the People Actmaterial factsparticularsCode of Civil Procedurestriking out pleadingsElection Commissionreturning officerpreliminary objection

Judgment

702
ROOP i..Ai.. SATHi
I

v.

BI NACHHATTAR SINGH
I
November 2, 1982

(D.A. DBSAI AND A.P. SBN, JJ.J

Q Election Symbols ( Resetvatlon at!d Allotment) Order 1968-0rder made
under Representation of the People Act, 1951. ·

Representation of the People Act, 1951-Trial of election petition-Prov/..
slons of 0. VI, Code of Civil Procedure. 1908 applicable except as modified by
sub-i. (5) of s. 86. I

D
' •'
Reprdentatlon of the Peopk Act, 1951-CI. (a) of sub-s. (I) of s. 83-
Trial of election petition-Omission of £maieria/ facts" reRders whole petition bad
under O. Vil, r. IJ(a), Code of Civil Procedure, '1908-Court cannot strike down
;1ortions only.

Representation of the People Act, 1951-CI. (b) of sub-s. (I) of s. 83-
E Trial of election 'petition-Omission of 'particulars'-Court may direct 'further
and better particulars' under 0, VI, r. 5, Code of Civil Procedure, 1908.
I

For a candidate to be deemed to be set up by a politica! party under
paragraph 13 of the Election Symbols (Reservation and Allotment) Order 1968,
it is essential .that a notice in writing to that effect signed by ··the duly authorised
office-bearer of the political party is delivered to the returning officer of the
F conStituency not later than 3 p.m. on the I last day of withdrawal of candidatures.
. The allotment of any sYmbol to ~a candidate by the returning officer is final
under sub-r. (5) of r. 10 of the Conduct of Elections Rules, 1961 except where
it is inconsistent with any directions issued by the -Election Commission in
that behalf,
•
G The appellant, the respondent and one Jagmohan Singh contested 1he
election to the Punjab Legislative Assembly (rom the same constituency and
the respondent was declared elected. The appellant_ challenged the election of
the respondent under s. IOO(l)(dJ(iv) read with s. 123(7) of the Representation •
of the People Act, 1951. Paragraphs 4 tO 18 of the petition related to change
of symbols allotted to the candidates. It was averred therein that the last day
1-1 for withdrawal of nomination papers was May 5, 1980; that a notice in writing
signed by the authorised ~ffice-bearer of the Indian National Congress (I) to the
effect that Jagmohan Singh was contesting as the candidate of t_hat party
kooi> LAL v. NACHHATTAR siNGH

had been deHvered to the Retui"ning · Offic~r on that day; that the :Retliriiing A
Officer had on May 8, 1980, intimated by a Jetter that on receipt of instfuctions
. from the EISC:tion Commission a change had been effected · in the symbols
allotted to the candidates according to which the sYm.bol 'hand' reserved for
the Indian National Congress (I) had been allotted tO the respondentj that in
terms of p8.ragraph 13 .of -the Symbols Order Jagmohan Singh ollght to have
been deemed to be lhe candidate set Up by the Indian National Congress (I);
that the Election Commission had no power to direct re·allotment of the symbol B
once allotted to a candidate under sub-r. (4) of r. 10 and therefore the action
of the Returning Officer in recalling the allotmeht of the symbol 'hand'
tO Jagniohan Singh was in violation of the Act and the rules.made thCreunder.
The respondent contested these averments .in bis written statement and referred
to, the circumstances in which the Election Commission had issued the instruc-
tions relating to.change of symbols.
c
>--
1
The respondent -raised a preliminary objection that the averments in
paragraphs 4 to 18 of the petition did not disclose any cause of actioi:i and the
High Court, accepting the objection, ordered deletion of those paragraphs from
the Petition~ The Hiih Court 'held that· it was Incumbent on the appellant 't0
find out the circumstances in which the Election Commission had passed the
',.. order relating to change of-syinbOis and that iri the absence of those matCrial D
circumstances non-compliance with r.10(5) or Par.agraph.13 of the, Sy.mbols
. Order could n_ot be spelled out. The High Court further held that the. Symbols
Order was not an order
. made under, the Act and therefore . s. IOO(l)(d)(iv) was
not attracted.

1n:·appeal, counsel fOr apt>ellant contended ihat paragraphS 4 tO 18 of
. the petition contained all t~e material facts necessary to show that the chahge
E
of symbols was in breach of r. 10(~) and paragraph 13 of the Symbols .Order
and the High C'.ourt was not justified in ordering .thiir deletic;>n.

Courisel for respondent contended · tb8t paragr~phs 4 to 18 Or the petition ·
did not disclose· any cause of actiOn as there was non·disclosure of facts
~ecessary t<;> shoW how -the order of the Election Commission was illegal, that -
F
the High court waSjustified in stiiking· out those paragraphs under 0. VI, r.16
of the Code of Civil Procedure, 1908 aS it bad no power to" direct further arid
better particulars Under o. VI,'r. 5. Laying emphasis on the words "under the
Act" oc~urring in s•. 100(1)(d)(iv) he ~ontended th~t the Synibols Order was
not ao Order made u·nder the _Act.

Allowing thtl api)eal,
G

• HELD : Cl. (a) of sub-s.(l) of s. 83 of the Representation of the People
·Act, 1951 enjoins that ao election petition shall contain· a concise statement.of
the material facts on which -the election _petitioner relies. This clause is based
on the provisions of 0. VI, r. 2(1) of the Code of Civ'il "Procedure, 1908 from H
which it is clear that the statement of material facts ought not to contain,i:he
evidence by which they are proved. Cl. (b) of sub·s. (1) of s. 83 states that-an
SUPRBME COURT RBPORTS (1983) ~ s.c.a.
I
A election petitioner must set forth full particulars of any corrupt practice on
which he challenges the election of the returned- candidate. This clause is
based on O. VI, r. 4 of the Code and the High Court has ample power while
trying an election petition to direct furthei- and better particulars as to the nature
of the claim or defeDGe under O.VI, r.S. The word 'material' in cl. (a) means
facts necessary for the purpose of formulating a complete cause of action; and
if any one material fact is omitted, the statement or plaint is bad; it is liable to
B be struck out. The function of 'particuI8rS' in cl. (b) is quite different; the use
or" particulars is intended to meet a further at;id quite separate , requirement of
pleading imposed in fairness and justice to tho returned candidate. The function
of 'particulars' is tO fill in the picture of the election.petitioner's cause of
· action with inforination sufficiently detail~d to put th.e returned candidate on
bis guard as to the case he has to meet and to enable him to prepare for trial ...
·in a case where hiS election is chattenged On the ground of any corrupt practice.
c . Under O.VI, r.5. 'particula~s· will be ordered of the 'material facts' on which
the party pleading relies for his claim or defence. If a party's pleading is
1

defective he can also seek _leave to alter and amend his own defective pleading
under O.VI, r.17. There is no express itile providing for the consequence of a
party failing to deUver 'particulars' required by order of the Court but the
decisions are to the effect that either by the order calliD.g for particulafs or by a
later order the court can direct the clair:h or defence to be struck out under
D O.VJ, r.16. [724B; 723 H; 724 C-F; 726 C-E; 724 G-H; 725 A]

In the instant case the question whether the ·order pas;ed by the High
Court could be justified under. O.VI 1 r.16 would depend upon whether or not
the election petition was in conformity with the requirements of s.83. A prelimi-
nary objeCtion that the election petition does not contain a concise statement .of
material facts on which the petitioner rblies is but a plea in the nacure of
E demurrer and in deciding the question the court had to assume for this Purpose
that the averments contained in the petition were true. Although the High
Cotfrt observed that a question of this nature had to be decided on a considera-
tion of the averments in the election petition ~lone, it later on made certain
observations which tend to show that the aJiega tions in the written statenient
of the respondent were very much in its mind. It is no part of the statement
F · of an election-petitioner to anticipate the defence and to state what he would
have to say in answer to it. The High Court cast on the appellant the burden
of disclosing facts not within. his knowledg~. This approach was unwarranted.
The High Court was not justified in directing that ihe avermei:its in paragraphs, 4
to f8 of the petition be deleted on the ground that there was non-disclos ufc of
material facts sufficient to give rise to a cause of action under s. lOO(l)(d)(iv),
.G It is not clear from the order '!Vhether the High Court proceeded to act ~under
1

O.VII, r.1 l(a) or under O.Vll, r.16.. It could not have acted under 0. VII, r.ll(a)
as, under that rule, when it is found .that the plaint discloses no cause of
action, it is obligatory to reject the plaint as a· whole and not any particular
portion thereof. )"he High Court's Order cahoot also be Sustained under O.VI,
r.16 because there was no finding that the averments in paragraphs 4 to 18 were
either unnecessary, frivolous or vexatious, .or were such as may tend •to pre-
judice, embarass or delay the fair trial of the election, or were sU:ch 3:s to cons-
.
titute an abuse of tho process of the court. ,[723C; 721H; 722 A-B; 724 B; 721C;
719 G-H; 720 A·B; E·BJ
ROOP LAL V· NACHHATTAR SINGH 705

Bruce~. l!dhams Press Ltd. [1936] I K:.D. 697 and Samant N. Balakrishan A
v. George Ftrnandez & Ors., [1969] 3 S.C.R. 603, referred to.

(b) The contention that the High Court had rio power to direct further
and better particulars under O.VI, r.5 ca~not be J.ccepted. Sub-s. (1) of s.87
· enacts that the trial of an election petition shaU be, as nearly as maY be, in
accordance with the procedure applicable under the Code of Civil Procedure, 8
1908 to the trial of suits, subject tb the provisions of the Act and of"any rules
made thereunder. There are no express provisions in the Act or in the rules
made thereunder .to deal With a situation like the one presented in the instant
case. The provisions of the Code accordingly must apply in such a case as
provided by sub-s.(J) of s.87. That being so, the provisions of O.VI which are
integral part of the Code co~e into play except to the extent modified by
sub·s. (5) ofs. 86. [727 A-B; 726 E-G] c
Hari Vishnu Karnath v. The Election Tribunal & Anr., AIR [19S8] M.P. 1681

.•.
distinguished .

',,
Bhikaji Keshao Joshi & Anr. v. Brijlal. Nandlaf Joshi & Ors., [.1955] 2
S.C.R. 18. referred to. D

2. The High Court was in error in holding that the Election
Symbols (Reservation and Allotment) Order, 1968 was not an order made"
under the Representation of the People Act, .1951. The Act is a law made
by Par1iameot under. Art. 327 of the Constitution to provide for conduct of
elections and the Conduct of Elections Rules, 1961 are ·rules framed by the E
Central Government under s. J69 in consultation with the Election Commission
for regulating the mode of holding e1ections. Rule S requires the-Election
Commission to specify the' symbols that may be chosen by candidateS and the
restrictions to which. their choice sball be subjected. Rule 10 provides for
allotment of symbols to c~ritesting candidates by the returning officer subject
to any general or special directions · issued in that behalf by the Election -
Commission. By virtue of Art. 324 of the Constitution the authority ·to
conduct aH elections to Parliament and State Legislatures is vested in tba
Election Commission. The Symbols Orde'r has been issued by the Election
Commission in exercise of its powers under Art. 324 read with s. 5 and 10.
The primary object of the Symbol Order is to provide for specification;
reservation, choice and allotaient or· symbols -at elections in parliamentary
• and assembly constituencies. It is a matter of common knowledge ·that
elections in our country are fought on the basis of symbols. It must but G
logically follow as a necessary corollary that the Symbols Order is an ordei:
made under the Act. Any other view would be destructive of the very fabric
of our system of holding parliamentary arid assenibly constituency elections
•
in the country on the basis of adult suffrage. [718 B; 712 G; 713 B-C; 713' H1
714 A; 719 D-F]
H
Sadiq Ali & Aiir. v. Election Commission of India· & Ors., (1972] 2 S.C.R.
318, referred to.

'
706 SUPREME COURT REPORTS (1983j I S.C.R.
CIVIL APPELLATE JURISDICTION Civil Appeal No. 1106 (NCE) .
of 1981.

From the Judgment and Order·dated the 22nd February, 1981
of the Punjab & Haryana High Court in Election Petition No. 3 of.
1980.•
8
D. V. Patel, A.S. Saha/ and M.C. Dhingra for the Appellant.

P.R. Mridul and R.S. Sodhi for the Respondent.

The Judg~ent of the Court was !delivered by
c
SEN, J. This appeal by special leave is from a judgment and
"Order of the Punjab & Haryana High Court dated February 2, 1981
by which it has directed the deletion of paragraphs 4 to 18 of the
·-<'
.

election petition filed by the appellant under s. 81 read with s. JOO of
D the Representation of the People Act, 1951 ('Act' for short) calling
in question the election of the respondent Nachhattar Singh· Gill to
the State Legislative· Assembly of Punjab from the Moga Assembly
Constituency No. 99 on the ground ' that there is non-disclosure of
material facts on which he alleges that the change of allotment of
symbols by the Returning Officer, Moga amounted to non-
compliance with the provisions of thel Constitution: or of the Act, or
any rules· or orders made thereunder so that the result of the election,
insofar as it concerns the respondent i.e. the .returned candidate, is
materially affected.

At the last general elections to the State Legislative Assembly
F of Punjab from Moga Assembly Constituency No. 99 the appellant
contested as a candidat~ of the Lok Dal Party. The last date for
withdrawal of nomination papers wa.s notified as May 5, 1980. It
appears that on that day Shri Darbara Singh, President of the
Punjab Pradesh Congress (I) Committee, intimated the Returning
..
Officer that Jagm~han. Singh had b~en nominated as the official •
G candidate of the Indian National, Congress (I) to contest the election.
There is also on record a letter dated May 5, 1980 addressed by
Shri Darbara Singh, President, Punjab Pradesh Congress (I) •
Commiitee, to the respondent stating that Jagmoban Singh had been
H finally selected as the official candidate of the Indian National
Congress (I) from the 99· Moga Assembly Constituency in his place,
and he was advised to withdraw his nomination paper.
ii.601' LAL v; NACliHATTAR SINGH (Sen, J.) 101
It appears that the Indian National Congress (I) changed it.s A
official candidate and finally selected the respondent Nachhattar
. Singh Gill to be the· official candidate of its. par(y. On May 7, 1980,.
the Returning Officer, Moga Vidhan Sabha Assembly Constituency
wrote a letter to Jagmohan Si.ngh stating that he bad be:en directed
by the Secretary, Election Commission· of India, by means of a police
radio message that the respondent was . to be treated as the finally .B
selected candidate, and that party's reserved symbol 'hand' be
·allotted to him. On May' 8, 1980, the Returning Officer, Moga
Vidhan Sabha Assembly Constituency, addressed a letter to all the
? candidates regarding the change in the allotment of election symbols ·
• to the effect :
c
"According to the instructions from the Chief Election
Commissioner of India, certain change has been effected in
the election symbols of the candidates of the election to the
99-Moga Legislative Assembly Constituency which is as
under:
D
S.No. Name of the Candidate Symbol Allotted

I. Shri Nachhattar Singh 'HAND'

2. Shri Jagmohan Singh "BOW & ARROW" E
Accordingly, the necessary change of symbols was effected in
Form 7A, the list of contesting condidates. The respondent fought
the election on the reserved symbol of the Indian National Congress
(I)' 'hand' and secured 2f,460 votes. _As against this, the appellant,
who was a candidate of the Lok Dal party, secured 16,686 votes
while the aforesaid Jagmoban Singh as an Independent candidate got F
242 votes. The. appellant was therefore defeated by the respondent

.. '
by a margin of 5,774 v1)tes. The appellant filed an election petition
challenging the election, of the respondent.under s. JOO (I) (d) (iv)
read withs. 123 (7) of the Act. The averments in paragraphs 4· to 18
related to the change. of symbols allotteil to the respondent viz.
'band' instead of 'bow & airow' allotted to Jagmohan Singh.
G
'
Upon these facts, it is averred in paragraph 12 that Jagmoban
Singh alone be. deemed to be set up as. a candidate by the Indian
National Congress (I) within the meaning of 'paragraph 13 of the
Election ~ym.bols (Reservation & Allotment) Order, 1968 and not
the responde_nt, and that the · candidates could withdraw· their.
"·
708 SUPRBMB COURT REPORTS [1983) 1 s.c.a.

A nomination papers under s. 37 (I) before 3 p.m. on May 5, 1980
which was notified by the Election Commission to be. the last date
for withdrawal of candidatures under s. 30 (c) and thereafter the
'
Returning Officer was enjoined uod~r s. 38 (I) to publish in the
prescri,bed Form 7A the names and addresses of the contesting
candidates together with the symbols allotted to them. It is then
8 averred in· par~raph 14 : ·

"On a perusal of para 18 of the Symbols Order it is
clear that the Election Commissi'oo has no power to issue
instructions and directions t9 the Returning Officer of an
c Assembly Constituency to reallot the symbol once allotted
to a contesting candidate under sub-rule (4) of rule 10 of the
Conduct of Elections Rules and to allot the symbol reserved ·
for a National Party who has allotted the symbol to a
candidate deemed to be set op by that political party under
para 13 of the Symbols Order to any other person after the
D publication of the list of the contesting candidates in
Form 7A."

Io paragraph 15 after stating that Jagmohan Singh had
delivered to 'the Returning Officer a nolice in writing as provided for
E under paragraph 13 (b) f~om Shri Darbara '
Singh, President, Punjab
Pradesh Congress (I) Committee, who was duly authorized by the
Indian National Congress (I) to issue such authorization as envisaged
under paragraph 13 (c), the appellant' avers that the action of the
Returning.Officer in recalling on May 8, 1980 the allotment of the
symbol 'hand' to Jagrnohao Singh on May 5, 1980 and allotting the
F same to the respondent, was in violatipo of the provisions of the Act
and the rules made thereunder, and the result of the election, insofar
as it concerns the returned candidate i.e. the respondent, has been
materially affected inasmuch as because of the change of symbol
Jagmohao Singh got only 242 votes while the respondent could not
G have secured more than the same number if he had contested on the .
·symbol 'bow & arrow' earlier allotted to him' If the respondent had
not been allotted the reserved symbol 'hand' of the Indian National
Congress (I), he could not have woo the election. In paragraphs
16, 17 and 18, the appellant set ont some facts showing how the
result of the election, insofar as it concerns the respondent, has been
H materially affected by the change of allotment
'
of symbols.
ROOP LAL v, NACHHATTAR SINGH (Sen, J.) . 709

The respondent filed a written statement controverting the A
allegatio.n that there was a breach of paragraph 1'3 of the Symbols
Order by the change of allotment of symbols made by the Returning
. Officer in accordance with the instructions issued by the Election
. ' Commission. It was pleaded, inter alia, that the respondent had
made a declaration in the nominaiion paper' filed by him on May
B
2, 1980 to the effect that he had been selected as a candidate of the
Indian National Congress (I); and that he had on May 5, 1980
:' furnished a notice to the Returning Officer signed and issued by
·Shri Darbara Singh,__ President, Punjab Pradesh Congress (I)
Committee, in pursuance of paragraph 13 (b) of the Symbols Order.
It was alleged that after the respondent had been adopied as a candi-
date by the Indian National Congress (!), Jagmohan Singh made an
c
effort to get that party's ticket for the seat and produced a letter
from Shri Darbara Singh dated May 5, 1980 before the Returning
Officer showing that he was the official candidate of ·the Indian
National Congress (I). When the respondent learnt of this move on
the part of Jagmohan Singh, he met the President of the Indian D
National Congress (I) at New Delhi on the morning of May 5, 1980
and apprised her of the situation' and was i,nformed that he had been
finally selected as the patty candidate and there was no question of
a change. •

It is further averred that a communication was sent by Shri E
Bula Singh on May 5, 1980 to the Chief Election Officer, Punjab,'
Chand.igarh and the Returning Officer, 99-Moga Assembly Consti-
tuency, in supersession of all earlier commuqications wi.th regard to
the Assembly Constituency, stating that .the respondent was the
official candidate of the Indian National Congress (I) and that the
party's symbol 'hand' be allotted to him. A letter to this effect was F
also delivered by Smt. G. Brar, Member of Parliament to the Election
Commission on the morning of May 5, 1980. Thereafter, !lhri
Ganesan, Secretary to the Election Commission, got in touch with .
the Chief Electoral Officer; Chandigarh and informed. him that the
respondent was the official candidate of the Indian National Congress
(I). There was a mention of this talk in the telex message sent by the G
Secretary to 'the Returning Officer, Moga, with copy to the Chief
Electoral Officer, Punjab on May 5, 1980,

A preliminary objection was raised on behalf of the respondent
H
that the averments in paragraphs 4 to 18 as well as paragraphs 191\
710 SUPREME COURT REPORTS (1983! I s.c.R.

A ' and 20, with which we are·not .concerned, do not disclose any cause
of action and therefore they are liable to be deleted under Order
VII, r. I I (a) of the Code of Civil Procedure. The High Court ·
1

accordingly framed a preliminary issue to the effect :

"Whether paragraphs 4 to i 18, 19 (a) and 20 of the
B · election petition have to be deleted because the averments
made therein do· not make out any case for setting aside the
election under s. JOO (I) (d) (tv) and s. 123 (7) of the
Representation of the People. Act:"
I

By the judgment under appeal, the High Court sustained the
c 1
preliminary objection and directed that the averments in paragraphs
4 to 18 be struck out from the electibn petition. In dealing with 'the
question, the High Court observed that the preliminary issue had to
be decided upon a consideration of the pleas in the election petition
and nothing averred in the written 'statement could .be taken into )
account. ,,
\
~

D I .
· On a consideration of lhe averments in paragraphs 4 to 18 the
High Court felt that the use of the word "instructions" in Annexure
P-I, tlie letter addressed by the Returning Officer, Moga Assembly
Constituency on May 8, 1980 to all the candidates intimating about
the change in the allotment of election symbol to the respondent,
E cannot lead to an inference of their b~ing issued under paragraph 18
of the Symbols Order. It then observes :
I
"The petitioner bas not at all disclosed in the election
petition as to what was exactly the order of the Election
Commission behind the instructions in Annexure P-I, and
F
how it was in contravention of any of the provisions of the
Act, or rule, or order made thereunder."
'

It was urged on behalf. of the respondent" that before filing the
election ·petition it was incumbent on the appellunt to find out the
· entire circumstances in which the Election Commission passed the
G
order as to the change of symbols and consequently issued instruc-
tions to the Returning Officer in that behalf. The High Court
accepted the contention and observed that "in the absence of
material circumstances, non·compliance with the provisions of r. IO
(5) of the Conduct of Election Rules; 1961, or of paragraph 13 of
H
the Election Symbols (Reservation &. Allotment) Order, 1968 could
not be spelled out." further, the Hi~h Court was of the view (bat
ROOP LAL v. NACHHATTAR SINGH (Sen, J.J 711

the Symbols Order having, been made by the Election Commission A
in exercise of the powers under Art. 324 of the Constitution read
with rs. 5 and 10 of the Conduct of Elections Rules, it cannot be
said to be an order made under the Act and therefore the provisions
of s. JOO (I) (d) (iv) of the Act were not attracted. Accqrdingly, the
High Court directed that paragraphs 4·to 18 of the election petition
be deleted. 8

· Ii is argued by learned counsel for the appellant that under·
sub-s. (1) of s. 83 of the Act, an election petition must contain a
concise statement of the material facts on which the election
petitioner relies; the words "material facts" mean the facts necessary
· to formulate a complete cause of action. It'is urged that all the. c
material facts have been stated in. the election petition to show that
change of allotment of symbols by the Returning Officer, in
compliance with the directions of the .Election Commission, was in
breach-of r. 10 (5) and paragraph 13 of the Symbols Order which
gave rise to a cause of ~ction under s.-100 (I) (d) (iv) of the Act.
According to the learned counsel, .the appellant had disclosed all the D
facts Within his kDOW!~dge and it was DO part of his duty to antici-
·pate the defence and plead facts in relation thereto. '1t is further·
urged that the High Court was in error in holding that the breach of
r, 10 (5), paragraphs 13 and 18 of the Symbols Order does not
constitute non-compliance with any provisions of the Constitution,
or the Act, or any rules or orders made thereunder. E

In reply, iearned counsel for the respondent submitted.that the
Symbols Order was n.ot an order made under the Act and therefore
the change of allotment of symbols was a matter which fell outside:
the purview of s. 100 (1) (d)·(iv) of ihe Act, It was urged that there F -
was no breach of r. 10 (5) of the Conduct of Elections Rules or of
paragraphs 13- and 18 of the Symbols Order inasmuch"' the res-
. pondent was the official candidate set up by Indian National
Congress (I) and he bad in the nomination [laper filed by him before
the Returning Officer on May 3, 1980 made a declaration to the
effect and had also indicated his choice of that party's reserved G
symbol 'hand'. Our 11.ttention was drawn to certain averments in the
written statement which tend to show that the respo.ndent was, in
fact, the ·Candidate sponsored, by the Indian National Congress (I).
Learned counseI made a grievance that the appellant had deliberately
supperssed this fact in paragraph 7 of the election petiiion. Further, H
he urged that it was incumbent on the appellant !<! fin4 out the
712 SUPREME COURT REPORTS [1983] I s.c.R.

A . circumstances in which the Election Cdmmission issued the necessary
instructions as to;the change of symbols under paragraph 18 of the
Symbols order. It was contended that the High Court was therefore
justified in strikinii out paragraphs. 4 to 18 of the election petition
on the ground that they do not disclose any cause· of action. Further
it was contended that the High .Court had no power to order further
and better particulars under Order VI, r, 5 of the Code of Civil
Procedure. In support of the contention, reliance was placed on
Hari Vishnu Kamarh v. The Electio.n Tribunal, Jabalpur & Anr. (')

c
- In this appeal, two questions arise. First of these is whether
any breach of paragraph 13 or 18 of the Symbols Order amounts to
non-compliance with the provisions of the C~nstitution, or the Act,
-
or any rules or orders made under the Act and therefore the change
of allotment of symbols by the Returning Officer in compliance with
the directions of the Election Comiµission was a matter which fell
within the purview of s. JOO (1) (d) (iv) of the Act. The second is
D whether it was incumbent on the appellant before filing the election
petition to find out the cfrcumstances in which, and. the reasons for
·which, the Election Commission issued necessary instructions under
paragraph 18 of the Symbols Order; 'and. if so, whether failure to
disclose such facts amounts to non-disclosure of material facts i.e. an
incomplete cause of action under s. 100 (I) (d) (iv) of the Act and
E therefore the ayerments in paragraphs 4 to 18 of the election petition
were liable to be struck out under ;Order VI, r. 16 of the Code of
Civil Procedure, 1908.

As to the first question, there can be no doubt whatever that
. '
the Symbols Order is an order made · under the Act. Under Art.
F 324 of the Constitution, the superintendence, direction and con-
trol of the preparation of the electoral rolls for, and the conduct of,
all elections to Parliatµent and the Legislature of every State and
of elections to tbe offices of President and Vice-President held
unde_r the Constitution, vests in the Election Commission. The
Act is a law made by Parliament under Art. 327 of the Constitution •
G
to provide for the conduct of elections to the Houses of Parliament
and to the House or Houses of the Uegislature of each State, the
qualifications and disqualifications for l!'embership of those Houses, •
the corrupt practices and other offences at or in co~nection with
H
(1) AIR 1958 M.P. 168,
ROOP LAL v. NACHHATTAR SINGH (Sen, J.) 713

such elections and the decision of doubts and disputes arising out A
_,.,; of or in connection with such elections.

Sub-s. (I) of s. 169 of the Act provides that the Central
Government may, after consulting the Election Commission, by
notification in the Official Gazette, make rules for carrying out the
purposes of the Act. Sub·s. (2) thereof provides that in partii:ular,
and without prejudice to the generality of the foregoing power, the
rules framed by the Central Government under sub-s.(I) may
provide for all or any of the matters enumerated therein. In exer-
cise, of the powers under s. 169 of the Act, the Central Government
made the Conduct of Elections Rules, 1961 for the purpose of c·
regulating the mode of holding elections to the Houses of Parliament
or to the.House or either House of the Legislature of every State.
Rule 5 of the Conduct of Elections. Rules requires· the Election
Comm.ission to specify .the symbols that may be chosen by candi-
dates in parliamentary and assembly ,elections and the restrictions
to which that choice shall be subject, and it provides :
D

•
"5. Symbols for elections in parliamentary and assembly
constituencles-(I) The Election Commission shall, by
notification in the Gazette . of India and in the Official E
Gazette of each· State, specify the symbols "that may be
chosen by candidates at elections in parliamentary or
assembly constituencies and the restrictions to which their
choice shall be subject.

p
(2) Subject to any general or special direction ,issued
by the Election Commission either under· sub-rule (4)
or sub-rule (5) of rule 10, where at any such election,
more nomination papers than one are delivered by or
on behalf of a candidate, the declaration as to symbols
made in the nomination paper first delivered, and
G
no other declaration as to symbols, shall be taken·
into consideration under rule 10 even if that nomina-
tion paper has ·been. rejected".

Rule IO provides for allotment of sy'mbl'>ls to the contesting candi- H
dates by the Returning Officer subj<;~t to anr general or. special
714 SUPREME COURT REPORTS [19&3} l S.C.R.

A directions issued in that behalf by the Election Commission. ·11,
insofar as relevant, reads as follows :
'

"JO. Preparation of list of cohtesting candidates :
'
I
• . (I) xx xx xx
B
(2) xx xx xx

(3) xx xx xx

(4) At an election in a parliamentary or assembly consti-
0 tuency, where a poll becomes necessary, the returning
officer shall consider the choice of symbols expressed
by the contesting candidates in their nomination papers
and shall, subjeet to any general or special direction
issued in this behalf by the Election Commission -
I . . ..

D (a) allot a different symbol to each contesting candi·
-, date in conformity, as far a• practicable, with his
choice; and

(b) if, more • contes'ting candidates than one have
E indicated thei.r preference for the same symbol,
gecide by lot to which of such .,andidates the
symbol will be allotted.

(5) The allotment by·the returning officer of any symbol
to a candidate shall be final except where it is
F inConsistent. with any di~ections issued by the Election
Commission in this beb*lf in wbich case the Election
Commission may revise the allotment in such manner
as it thinks fit." ~

G The Election Symbols (Reservation & Allotment) Order,
1968. was issued by the Election Commission in exercise of its pbwers
under Art. 324 of the Constitution read with rs. 5 and I 0 of the
Conduct of Elections Rules, 1961 and all .other· powers enabling in
that behalf. The primary object and purpose of the Symbols Order,
~· as the long title and the preamble show, is to provide ,for spccifica-
hon, reservation, choice and allotment of symbols at elections in
parliamentary and >1ssemb\y constituencies, for the recognition of
ROOP LAL v. NACHHATIAR SINGH (Sen, J.) 7JS

political parties in relation thereto and for matters ~onnected there· ·A
with. ·:The purpose and object of the Symbols Order as well 'as the
source of power under which the Order was issued is brought out in
the preamble which reads :

"Whereas the superintendence, direction and· control .
of all elections to Parliament and to the Legislature · of B
every State are vested· by the Constitutution of India -
in the Election Commission of India.

, __
And, whereas it is necessary and expedient to provide
·in the interests of purity of election to the House ' of the
People and the Legislative Assembly of every State and in
the interests of the conduct of such elections in a fair and
. efficient· manner, for the specification,-. reservation, choice
and allotment of sym~ols for the recognition _of political
c

• parties in relation thereto and ' for matters connected
therewith.
D
· Now, therefore, in exercise of the powers conferred by
article 324 of the Constitution read with rule 5 and rule I 0
of the Conduct of Elections Rules, 196 l, and all other
powers enabling it in this, behalf, the Election Commission
of India hereby makes the following Order._" E
. It would be apparent from the provisions of the Conduct
of Elections Rules, · 1961 and the Election Symbols (Reservation
& Allotment) Order, 1968 that when elections are imminent,_ allot-
ment of symbols to candidates for elections in parliamentary and
assembly constituencies is but an important stage of such elections.
The provisions for registration of political parties ind iheif recogni:
tion as National or State parties by the Commission are ·only for
the purpose or allotment, reservation and _specification of
symbols at elections. ·The expression,. "political party" is defined
in paragraph 2 (h) to mean "an association or body of individuals of
India registered with the Commission as a political party under G
paragraph 3 and includes a political party deemed to be registered
• with the Commission under the proviso to . sub-para (2) of that
paragraph."· Paragraph 3 provides for registration with the Com-
mission of associations and bodies of individuals as political parties9
for the purposes of the ·Order and paragraph 4 provides for allot· H
ment of symbols. Paragrai;>l:I ~ g~a,I~ wilb the classification of
716 SUPREME COURT REPORTS (1983) I S.C.R.

A symbols. According to this paragraph, a 'reserved symbol' is a
symbol reserved for a political party for exclusive use of that party,
A symbol other than the reserved, symbol has be~n described by the
said paragraph to be a 'free symbol'. Paragraph 6 provides for
the classification of political partie.s. The parties are either
recognized political parties or unrecognized political parties and it lays
B down the conditions necessarv for a political party to be treated as
a recognized political party. If a political party is treated as a
recognized political party in four'or more States in accordance with
paragraph 6, it shall have the statu~ of a National party throughout
the whole oflndia. If; on the contrary, a political party is treated .
as a recognized political party in less than four States, it shall enjoy
the status of a State party in the State or States in which it is a
recognized political party. We need not dilate upon this aspect
because it is not in dispu le that the Indian National Congress (0 and
Lok Dal are both National parties. Paragraph 8 regulates the
manner of allotment of symbols, and sub-para (I) and (3) which are
relevant for our purposes read :
D
"8. Choice of symbols by candidates of National and
State Parties and allotment thereof: '

(I) A candidate set up by a National party at any election
E in any constituency in India shall choose and shall be
allotted, the symbol reserved for that party and no
other symbol.

(2) xx xx xx
F (3) A reserved symbol shall not be chosen by, or allotted
to, any candidate in any constituency other than a
candidate set up by a National party fot whom such
symbol has been reserved or a candidate set up by a
State party for whom such symbol has been reserved
G in the State in which it is a State party even if no candi-
date has bten set. up by such National or State
party in that constituency."
•
9i>aragraphs 9 to 12 deal with certain restrictions on the allotment of
H symbols, concessions to certain candidates as well as choice of
symbols for some categories of candidates with which we are not
9oncerne\l. Paragraph 13 specifies as to when a candidate shall be
ltOOP LAL v. NACHHATTA!t SINGH (Sen, J.) 71?

. deemed to be set up as a candidate by a political party and reads as A
under:

"13. When a candidate shall be deemed to be set · up by
a political party-For the purpose of this Order a candidate
. shall be deemed to be set up by a political party if, and
B
. only if,

(a) the candidate has made a declaration to this effect in
his nomination paper ;·

(b) a notice in writing to that effect has, not later than
3 P.M. on the last day of withdrawal of candidatures,
been delivered to the returning officer of the consti·
tuency; and

(c) the said notice is signed by the president, the secretary
or any other office-bearer of the party and the presi- D
dent, secretary or such other office· bearer is a'Uthorised
by the party to se~d· such notice and the name and
specimen signature of the president, the secretary or
such other office-bearer are communicated .in advance
to the returning officer of the constituency and to the
Chief Electoral Officer of the State." E
Paragraph 18 which is important for our purposes is in these
terms:

"18. Power of Commission to issue instructio71..s and
directions-The Commission may issue instructions and F
directions :

(a) for the clarification of any of the provisions of this·
Order;

(b) for the removal of any difficulty which may arise in G
.relation to the implementation of any such provi·
"sions; and
•
(c) in relation to any matter with respect to the reserva·
tion and allotment of symbols and recognition of H
political parties, for which this Order makes no
. 71$ suPRllMe oouilt RBroRri [198~] 1 s.c.R .

A provision or makes insufficient provision, and
prov1s10n is in the opinion · of the Commission
necessary for the smooth and orderly cond~ct of elec-
tions."
. In our judgment, the High Court was clearly in error in
B holding that the Symbols Order was not an order made under the
Act and therefore the change of allotment of symbols by the
Returning Officer in compliance with the directions issued by the
·Election Commission, even if it was in breach of paragraph 13
thereof, did not amount to non-compliance with the provisions of
the Constitution, or the Act, or any rules or orders made under the
c Act and therefore the matter fell outside the ambit of s. JOO (I) (d)
(iv) of the Act. It is however urged by learned counser for the res-
pondent that the Symbols Order was not an order made under the
, Act. Emphasis is laid on the words "under the Act" occurring in
s. JOO (1) (d) (iv) of the Act. We are afraid, the argument is too
tenuous to be accepted. The Symbols Order was issued by the Blee·
D tion Commission under Art. 324 of the Constitution in exercise of
its undoubted powers of superintendence, direction and control of
the conduct· of all elections to Parliament and Legislature of every
State. It is also relatable to rules 5 and IO of the Conduct of
Elections Rules framed by the Central Government in exercise of
their powers under s. 169 of. the Act. Rule 4 of the Conduct of·
E Elections Rules provides that every nomination paper presented
under s. 33 of the Act shall be in Forms 2A to 2E, as may be
appropriate. The Forms 2A and 2B require the candidate
to choose symbol. Under r. 5 (!) the Election Commission by
notification may specify the symbols that may be chosen by candi-
dates at elections to parliamentary and assembly constituencies.
F Under i'. IO (4) the Returning . Officer shall consider the choice of
symbols expressed by contesting candidates and "subject to any
general or special direction issued by the Election Commission" .
allot different symbols to different candidates. The allotment of
symbols by the Returning Officer is final· under sub-r. (5) of r. IO
except where it is inconsistent with any directions issued by the
G Election Commission in that behalf in which case the Election
Commission may revise the allotment in such manner as it thinks fit.

In Sadiq Ali & Anr. v. Election Commission of India & Ors.(')
Khanna, J, speaking for the court, after setting out the scheme of
H
(I) (1972] 2 SCR 318.
:Root> LAL v. NACHHATTAR SINGH (Sen, J.) 719

the Symbols Order, explained the ·reasons which led to the intro- A
duction of symbols, in these words :
j

"It is well. known that overwhelming majority ·qf the
electorate are illiterate. It was realised· that in view of the
_handicap of illiteracy, it might not 'be possible for the
illiterate voters to cast their votes in favour of the candidate B
of their choice unless there was some pictorial representation
on ihe ballot paper itself whereby such voters might identify"
the candidate of their choice. - Symbols were accordingly
brought into use. Symbols or emblems are not a peculiar
feature of election law of India. In some countries, details
in the form of letters .of alphabet or numbers are added
c
against the name of each candidate while in others, resort ·
is made to symbols or emblems. The object is to ensure that
the process of election is as genuine a'ld fair as possible and
that .no elector should suffer from any handicap in casting
D
his vote in favour of a candidate of his choice."

The Symbols Order made ·by th~ Election Commission in
exercise of its power under Art. 324 of the Constitution read with
rs. 5 and 10 of the Conduct of Electious Rules and all other powers
enabling it in that behalf, are in the nature of general directions E
issued by the Election Commission to regulate the mode of allot-
ment of symbols to the contesting candidates. It is a matter of
common knowledge that elections in our country are fought on the
basis 'of symbols. It must but logically follow as a necessary corollary
that the Symbols Order is an order made under the Act. Any other
view would be destructive of the very fabric of our system of holding F
parliamentacy and assembly constituency elections in the country ,on
the basis of adult suffrage. '

As to the second question, there can be no doubt whatever
that the High Court was not justified in directing that the averments .G
in paragraphs 4 to 18 of the election petition be deleted on the ground
that there was non-disclosure of material facts sufficient to give rise
to a cause of action under s. too (J) (d) (iv) of the Act.

The order passed by the High ·Court directing the striking out H
of paragraphs 4 to 18 of the• election petition can hardly be\
supported. It is not. clear from ·the order that ·the High Court
720 SUPREME COURT REPORTS (1983] l s.c.R.

proceeded to act under Order VII, r. 11 (a) or under Order VI, r. 16
of the Code in passing the order that it did. It is rightly conceded
that the High Court could not have acted under Order VII, r. 11 (a)
of the Code. Where the plaint discloses no cause of action it is
obligatory upon the Court to reject the plaint as a whole under
Order VII, r. 11 (a) of the Code, but the rule does not justify the
8 rejection of any particular portion of a plaint : Mulla's Civil
Procedure Code, 13th Bdn., Vol. !, p. 755. It is therefore necessary
to consider whether the order passed by the High Court could
be justified under order VI, r. 16 of the Code, which reads as
follows·:

c "16. Striking out pleadings - The Court may at any
o'r
stage the proeeedings order to be struck out or amended
any matter in any pleading -

(a) which may be unnecessary, scandalous, frivolous
or vexatious, or
D
(b) which may tend to prejudice, embarrass or
delay the fair trial of the suit, or
•
'(c) which is otherwise an abuse of the process of
the Court."
E The order passed by the High Court directing that paragraphs
4 to 18 of the election peiition be struck out cannot be sustained on
the terms of Order VI, r. 16 of the Code. There is no finding 'reached
by the High Court that the. averments in paragraphs 4 to 18.of the
F election petition are either unnecessary, frivolous or vexatious, Gr
that they are such as may tend to prejudice, ·embarrass or delay the
fair trial of the election, nor is there any finding that the averments
therein are such as to constitute an abuse of the process of the court. ·
That being so, the High Court had no power to direct the striking ••
G out of paragraphs 4 lo 18 of the elec:tion petition.

It is submitted by learned counsel for the respondent that there
.is non-disclosure of the necessary fa•:ts by the appellant in paragraphs
4 to 18 of the election petition to show as to how the order of the
Election Commission was illegal, or as to how there was non·compli-
ance with the provisions of the Constitution, or the Act, or any rules
or orders made under the Act within the meaning of s. JOO (I) (d)
(iv) of the Act. He urges that it wa!i incumbent on the appellant to
ROOP LAL •• NACHHATTAR SINGH (Sen, J.) 721

find out the circumstances in which the Election Commission.issued A
the necessary instructions as to the change ·of symbols under
paragraph 18 oft.he Symbols Order. It is contended that the High
Court was therefore justified in striking out paragraphs 4 to 18 of the
election· petition on the ground that they do not disclose· any cause of
action inasmuch as the averments therein do not constitute a plea.of
non-compliance with the provisions of the ·constitution, or the Act, 8
or any rules or orders made under the Act so as to attract s. JOO (ll
(d) (iv) of the Act. These contentions, in our opinion, cannot be
give11 effect to.

The approach of the High Court in deali11g with the preliminary C
issue appears to be wholly unwarranted. In dealing with the question
;
whether or not paragraphs 4 to 18 of the election petition disclose
any cause of action, the High Court has cast on the appellant the
burden of disclosing facts not within his knowledge. It 9peaks of his
duty to produce evidence prima facie to show that the change of
allotment of symbols by the Returning Officer to the respondent was D
in contravention of r. IO (5) of the Coi:iduct of Elections Rules read
with paragraph 13 of the Symbols Order. It then observes that the
onus was on him to establish as to how and under what circum-
, stances the Election Commission issued the instructions in question,
It accepts ·the contention of the respondent that it was incumbent on
the appellant to set himself.on an inquiry into these. circumstances. _ E
Aceording to the High Court, failure to disclose the circufDstances
which led the Election Commission to issue directions or instructions
·to the Returning Officer to effect a change in the allotment of
symbols, amounts to non-disclosure of material facts which must
entail in deletion of the averments in paragraphs 4 to 18 by which
the appellhnt seeks relief under s. 100 (I) (d) (iv) of the Act, We are F
afraid, the High Court has. viewed the matter from a wrong
perspective. ' · ·

We find it difficulr to comprehend the reasoning adopted by
. the High Court that there was non-disclosure of material facts. True
it is that it begins the judgment by observing tji~t a questio_n of this · G
nature, as it must be SO, has to be decided OD a consideration of the
averments in the election petition alone, and the allegations in the
written statement cannot be taken into account. A preliminary
objection that the election petitio!l is not in conformity with s. 83 (I)
(a) of the Act i.e. it does not contain the concise statement of the H
• material facts on which the petitioner. relies is but a plea in the
722 SUPREME COURT REPORTS [1983] I S.C.R.

A nature of demurrer and in deciding the ·~uestion the Court has to
assume for this purpose that the averments contained in the election
petition are true. Unfortunately, while dedding the preliminary issue
the High Court has made certain obserl'ations which tend to show
that the allegations in the written statem<:nt were very much present
in its mind. In repelling the contention of the appellant ·that the
B· instructions issued by the Election Commission for .reallotment of
symbols were.referable to paragraph 18 of the Symbols Order, the
High Court observes : · •

"Upon the use of word "instructions" in Annexure P-1,.
it was sough to be inferred that the · issuance thereof could
c only be within the ambit of para 18 of the Symbols Order,
since the change of Symbols was outside.the ambit of para
. 18 therefore the said change was illegal. The argument has
,'_not .jmpressed me, inasmuch as in the normal course of
things the Election Commission, having passed an order, -
issues instructions, for its compiiance. As such, the use of
D the "instructions" in any commu11ication cannot lead to an
inference of their being issued ~oder the said para 18 of the
Symbols Order."

It then goes on to observe :
''The petitioner has not at all disclosed in the election
petition as to what was exactly the order of the Election
Commission behind the instructipns in Annexure P-1 and
how it was in contravention of the provisions of the afore-
said. Act or the rules or order made thereunder."
It proceeds to say :
F
/
,
.

.• "Thus, the argument of the learned counsel for the
returned candidate proceeded that before filing the election
petition it was incumbent upo11 the petitioner to find out the
entire - Circumstances in whfoh , the Election Commission
passed the order as to the change of symbols and conse-
G qently issued instructions vide Annexure P-1 to the
Returning Officer.''

In coming to the conclusion that there was non-disclosure of
' material facts, the High Court observes :
H ,
"In the complete absence of the material circumstances,
non-compliance with the aforesaid provisions could not be
ROOI> LAL v. NACHHA'ITAR SINGH (Sen, J.) 723

·spelt ·out and hence in the election petition none of the s'aid A
provisions has been . specifically sought.. ... : . I direct that
• paras 4 to 18 of the election petilion be deleted."

These observations made by the High Court proceed on a miscon-
ception of law.
B

It is therefore necessary to c~nsider whether' the order passed
by the High Court could be justified under Order VI, r. 16 of the
·code. That would depend on whether or not the electioq. petition
is in conformity with the requirements of s: ·83 of the Act, which
reads as follows : c
'
"83. Contents of Petition-(!) An election petition-

(a) shall contain a concise statement of the material
facts on which the petitioner relies.
D
(b) _shall set forth full particulars of any corrupt practice
that the petitioner alleges, including as full a statement
as possible of the names of the_parties alleged-to have
committed such corrupt practice an_d the date and
place of the commission of each such practice; and E
(c) shall be signed by the petitioner and verified in the
manner laid down in the Code. of Civil Procedure,
1908 for the verification of pleadings :

Provided that where the petitioner alleges any corrupt
~,· practice, the petition shall also be accompanied by an
' . affidavit ·in the prescribed from in support of the
allegation of such corrupt practice and the particulars
thereof.

(2) Any schedule of annexure to the petition shall also
G
be signed by the. petitioner and verified in the same ..
• manner as the petiti.on."

Cl. (a) of s. 83 is based on the provisions of Order VI, r.2(1) of. H
the Code which states the basic c;>r cardinal rules of pleadings and
.is in the following terms :
724 SUPRBMB COURT REPORTS [1983] 1 s.c.R.

A "2. Pleading to state material facts and not evidence-Every
pleading shall contain, and contain only, a statement in a
concise· form of. the material facts on which the party •.
pleading relies for his claim iri def~nce, as the case may
be, but not the evidence by which they are to be proved."

B Cl. (a) of sub-s. (I) of s. 83 of the Act enjoins that an election
petition shall coritain a concise statement of the material facts on
which the election petitioner relies. It is no part of the statement
of claim of an election petitioner to 'anticipate . the defence and to
state what he would have to say in answer to it. Cl. (b) of
sub-s. (I) of s. 83 interdicts that an election petitioner must. set
c forth full particulars of any corrupt practice on which he challenges
the election of the returned candidate under s. 123(7) including as
full statement as possible of the name:; of the parties alleged to
have committed such corrupt practice and the date and place of
the commission of each such practice. It is more or less based on
Order VI, r.4 of the Code which reads : •
D
"4. Io all cases in which the party pleading relies on any
.misrepresentation, fraud, breach of trust, wilful default,
or undue influence, and in all other cases in which parti-
culars may be necessary beyond such as are exemplified in
E I.he forms aforesaid, particulars (with dates and items if
necessary) shall be stated in the pfoading."

The High Court has ample power while trying an election petition
to direct further and better particulars as to the nature of the claim
or defence under Order VI, r. 5 of the Code which reads :
F
"5. A further and better statement of the nature of the
claim or defence, or furthe.r andi better particulars of any
matter stated in an pleading may iri all cases be ordered,
G upon such terms, as to costs ~md otherwise, as may be
just."

Under Order VJ, r.5, particulars will be ordered of the material facts
on which the party pleading relies for his claim or defence. If a
party's pleading is defective he can also seek leave to alter and
ff . amend his own defective pleading under Order VI, r.17. There is
.no express rule providing for the consequence of a party failing to
deliver particulars r~quired by order of Court. but the decisions are
ROOP LAL v. NACHHATTAR SINGH (Sen, J.) 725

to the effect that either by tlie order .calling for particulars or by a
later order the Court can direct the claim or defence to be struck
o·ut under Order VI, r. 16 of the Code.

There is distinction between "material facts" and "particulars"
Th'e word "material facts" show thjlt the facts necessary to formu- ·
late a complete cause of action must be stated. Omission of a B
single material fact leads to an incomplefe cause of action and the
statemerit or plaint becomes bad. The distinction which has been
made between "material facts" and "particulars" was brought out
by Scott, L.J. in Bruce v. Odhams Press Ltd. (1 ) in the following
passage :
c
"The cardinal provision in r. 4 is that the statement of
claim . must state lhe material facts. The word "material"
means necessary for the purpose of formulating a complete
cause of action; and if any one' 'material" fact is omitted,
the statement ofclaim is bad: it is "demurrable" in the old
phraseology, and in the new is liable to be •"struck out" D
under 0. XXV, r. 4; See Philips v. Philips (2 ): or "a further
and better statement" of claim may be ordered under O.XIX
r. 7.
;
The function of "particulars" under r. 6 is quite differ- E
ent. They are no.t to be used 'in order to fill material gaps
.in a demurrable statement of claim.:...gaps which ought to
have been filled by appropriate statements· of the various
material facts which together constitute the plaintiff's cause
of action. The use of particulars is intended to meet a
further and quite sepa5ate requirement of pleading, impo- F
sed in fairness and justice to the defendant. Their function
is to fill in the picture of the plaintiff's cause of action with
information sufficiently detailed to put the defendant .on
his guard as to the case he has to meet and to enable him t
to prepare for trial."
G
The dictum of Scott, L.J. in Bruce's case, supra, has been quoted
with approval by this Court in Samant N. Balakrishan v. George
Fernandez & Ors.(') and while observing that the requirements of

(1) [1936] 1 K.D. 697. H
12) [1878] 4QBD127.
(3) [1969] 3 SCR 603.
726 SUPREME COURT REPORTS {I983f I s.c.R.

A s. 83 are mandatory, the distinction between material facts and
particulars was brought out in ·the following terms:

"The word "mat~rial" shows that the facts necessary
to formulate a complete cause of action must be stated.
Omission of a single material fact leads to an incomplete
8 cause of action. and the statement of claim becomes bad.
The function of particulars is to present as full a picture of
the cause of action with such further information in detail
as to make the op'posite party understand the case he will
have to meet.''
'".

c Thus, the word "material'' in material facts under s. 83 of the Act \.-
means facts necessary for the purpose of formulating . a complete -~
cause of action; and ff any one "material" fact is omitted, the state- \
~
ment or plaint is bad·; it is liable to be struck out. The function of
"particulars" is quite different, the use of particulars is intended to
meet a further and quite separate requirement of pleading imposed •
~

D in fairness and justice ·to the returned candidate. Their function is
to fill in the picture of the election petitioner's cause of action with
information sufficiently detailed to put the returned candidate on
his guard as to the case he bas to meet and to enable him to prepare
for trial in a case where bis election is challenged on the ground of
any corrupt practice.
E
Sub-s. (I) of s, 87 of the Act enacts that the trial of an elec-
tion petition shall be, as nearly as may be, in accordance with the
procedure applicable under the Code of Civil Procedure, 1908 to the
trial of suits,. subject to the provisions of the Act and of any rules
made thereunder. There are no express provisions in the Act or in
F the rules made thereunder as contemplated under sub·s. (I) of s. 87
of the Act to deal with the situation like the present. The provi-
sions' Of the Code accordingly must apply in such a case as provided
by'sub-s. (I) of s. 87 of the Act. That being so, the provisions of
Order VI which are integral part of the Code come into play except
to the extent modified by sub-s. (5) of s. 86 of the Act.
G

'
·Learned counsel for the respondent however contends that the
High Court had no power to direct further and ·better particulars
H under Order VI, r. 5 of the Code. In· support of the contention,
·reliance is placed on . the decision of the Madhya Pradesh High
MOP LAL v. NACHHATTAR SINGH (Sen, J.) 727

Court in Harl Vishnu Karnath v. The Election Tri.bunal & Anr. (') A
It is urged that the particulars given in· the petition were· insufficient
to formulate a cause of action and, therefore the High Court had
the power to strike out the pleadings under 'Order VI, r. 16 of the
Code. The contention cannot, in our opinion, be accepted. in
Bhikaji Keshao Joshi & An.r. v. Brijlal Nandlal Joshi & Ors, (2) the
B
Court recognized a power in the Tribunal to .direct particulars of a
corrupt practice and to strike out the pleadings in a case where there
was a default in compliance with a previous . order directing
particulars. Thereafter, there was a change brought about in law
by Act 27 of 1956. .Sub-s. (-5) of s.90 introduced by that Act recast
the old sub-a. (3) of s. 83 and took away the power of the Election c
Tribunal to order further and better particulars of corrupt practice
while retaining the power to allow am~ndment or amplification
though the language used was slightly different.

'
A
The decision of the Madhya Pradesh High Court in Hari Vishnu
Kam~th's case, (supra) on which reliance is placed is inapplicable. A [)
question arose whether the Election Tribunal was justified in direct-
ing furnishing of better particulars of certain corrupt practices.
There, the High. Court was dealing with the Act as it stood after its
amendment by Act 27 of 1956. In view of the change in law brought
about, the High Court held that the rule as laid dowri by this .Court E •
in Bhikaji Keshao Joshi' s case, (supra) was no longer applicable.
· After the repeal of sub-s. (3) of s. 83 of the Act by Act 27 of 1956,
which introduced in its place sub-s. (5) of s. 90, conferring power
on the Tribunal to allow amendment or amplification of particulars,
the High Court held that the word "allowed" meant allowed on an
application and therefore there was no power left with the Tribunaf
F
under sub-s. (5) of s. 90 to direct the furnishing of better particulars
and .that there would equally ·be no power to strike out the plead-
ings for default of furnishing particulars, if directed. It was how-
ever, held that it was open to the Tribunal to find that'the particulars
given in a petition were insufficient for trial. It is evident that the
decision of the High Court turned on the provisions of sub-s. (5) of G
·s. 90, which is identical to sub-s. (5) of s. 86 of the Act, - but both
.. these provisions relate to allowing an amendment of the election
petition subject to such terms as to costs or otherwise with a view to
furnish the particulars of any corrup! practice. The decision of the
H
(!) A.l.R. 195.8 M.P. 168.
(2) [1955] 2 S.C.R. 18.
728 SUPREME COURT REPORTS (1983) I s.c.R.

A Madhya Pradesh High Court in Hari Vish., Kamath's case, (supra)
is therefore distinguishable.

It mu.st accordingly be held that the High Court was not
justified in striking out paragraphs 4 to 18 of the election petition
acting presumably under Order VI, r. 16 of the Code of Civil Proce-
B
dure, 1908 on the ground that the facts stated therein were not
sufficient to formulate ·a complete cause of action under s. 100( I)
(d)(iv) of the Representation of the People Act, 195.1 i.e. du~ to
.
non-disclosure of material facis .

. In the result, the appeal succeeds and is allowed with costs.
c The jndgment of the High Court striking out the averments in para-
graphs 4 to 18 of the election petition is set aside and it is directed
to proceed with the trial according to law.

H.L.C. Appeal allowed.
'

•,

..

. .