SARDAR HARCHARAN SINGH BRARversusSUKH DARSHAN SINGH AND ORS.

A
                       SARDAR HARCHARAN SINGH BRAR
                                           v.
                        SUKH DARSHAN SINGH AND ORS.

B                                OCTOBER 27, 2004

                    [R.C. LAHOTI, CJ. AND C.K. THAKKER, J.]


          Representation ofthe People Act. 1951; Ss. 80, 81-A, 82, 83, 86(1), 117
C and 123(7)/Conduct of Election Rules, 1961; Rule 94-A: Filing of election
    petition by one of the defeated candidate against returned candidate on
    grounds ofcorr.up! practices etc. -Dismissed at the threshold by High Court-
    Correctness of-Material facts alleged-Deficiency in particulars could not
    have been a ground for dismissing the petition at the threshold-Court could
    have directed the petitioner to cure the deficiency-If necerary particulars
D   not supplied by the petitioner, the Court could either strike off the pleadings
    or refuse to try the instances of corrupt prac ::ces-Else the effect of such
    failure could have been determined and adjudicated upon at the trial-Held,
    the High Court was not correct in dismissing the petition at the threshold-
    Election Petition restored for hearing and decision by the High Court in
E   accordance with the directions set forth.

          Respondent No.I was declared elected from an Assembly Constituency
    defeating the appellant and other candidates in the Punjab State Assembly
    Elections, 2002. Appella~t filed an election petition challenging the election
    of respondent No.I on the ground that nomination of one of the respondents
F   was improperly accepted which has materially affected the election result,
    and the returned candidate was guilty of having committed corrupt practice
    in terms of Section 123(7) of the Representation of the People Act. High Court
    dismissed the petition at the threshold. Hence the present appeal.

          It was contended by the appellant that since the averments in tlie petition
G contained not only the material facts but also the particulars, minute details
    of the matter need not be given.

          Respondent-Returned candidate submitted that since the averments made
    in the election petition did not disclose any material facts, it cannot be tried.

H                                         682
             SARDAR HARCHARAN SINGH BRAR v. SUKH DARSHAN SINGH                 683

      Allowing the appeal, the Court                                                   A
       HELD:l. The High Court has not been right in directing the petition to
be dismissed at the threshold by forming an opinion that the averments made
in the election petition were deficient in material facts as the test laid down
in the several authorities and in particular in the case of Raj Narain is fully
satisfied. The grounds of corrupt practice and the facts necessary to formulate        B
a complete cause of action have been stated, even the particulars have been
given in the petition. However, ifthe Court feels that the particulars as given
in the petition are deficient in any manner the petitioner can be directed to
StJpply the particulars and make the deficiency good. In any case, deficiency
in particulars could not have been a ground for dismissing the petition at the         C
threshold. It is only the non-supply of particulars though ordered by the Court
which could have led to either striking off of the pleadings or refusal to try
the related instances of alleged corrupt practice. [689-F-G-H; 690-A-B-C)

      Raj Narain v. Smt. Indira Nehru Gandhi and Anr., [1972] 3 SCC 850;
H.D. Revanna v. G. Puttaswamy Gowda and Ors., [1999) 2 SCC 217; V.S.                   D
Achuthanandan v. P.J. Francis and Anr., [1999] 3 SCC 737 and Mahendra
Pal v. Ram Dass Malander and Ors., [2000) 1 SCC 261, relied on.

       2.1. The proviso enacted to sub-section (1) of Section 83 of the
Representation of the People Act is couched in a mandatory form inasmuch
as it provides that a petition alleging corrupt practice shall be accompanied          E
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
94A of the conduct of Election Rules. But at tbe same time, it cannot be lost
sight of that failure to comply with the requirement as to filing of an affidavit
cannot be a ground for dismissal of an election petition in limine under sub-          F
section (1) of Section 86 of the Act. The point is no more res integra and is
covered by several decisions of this Court. [690-C-D-E)

      G. Mallikarjunappa and Anr. v. Shamanur Shivashankarappa and Ors.,
[2001) 4 SCC 428 and Dr. Vijay Laxmi Sadho v. Jagdish [200112 SCC 247,
relied on.                                                                             G
      2.2. The defect 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. Having formed
an opinion that there was any defect in the affidavit, the election petitioner         H
    684                    SUPREME COURT REPORTS [2004] SUPP. 5 S.C.R.

A 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 trial. (690-G-H; 691-A-B)

         G. Mallikarjunappa and Anr. v. Shamanur Shivashankarappa and Ors.,
    (2001] 4 sec 428, relied on.
B
          3. The judgment of the High Court is set aside. The election petition
    shall stand restored on the file of the High Court for hearing and decision
    consistently with the principles of law enunciated in the judgment. (691-B]

          CIVIL APPELLATE JURISDICTION: Civil Appeal No. 8102 of2003.
c
         From the Judgment and Order dated 11. 7.2003 of the Punjab and Haryana
    High Court in E.P.No. 11-of2002.

         Rajiv Dutta, Motian Lal Saggar and Manoj Ohri with him for the
    Appellant.
D
         Rajinder Sachar, A. Mariarputham and Ms. Aruna Mathur for Mis.
    Arputham Aruna and Co. with him for the Respondents.

          The Judgment of the Court was delivered by

E         R.C. LAHOTI, CJ. Elections to the Punjab Legislative Assembly were
    held in the month of January-February, 2002. We are concerned with 105
    Muktsar Assembly Constituency. There were 12 candidates in the fray. The
    constituency went to polls and after counting the result was declared on
    24.2.2002. Sukh Darshan Singh, respondent No. 1, who contested as an
F   independent candidate, secured 32,465 valid votes while the appellant Sardar
    Harcharan Singh Brar, who was fielded by the Congress party, secured 32,265
    valid votes. Other candidates secured lesser votes. The respondent No. 1 was
    declared elected.

          The appellant filed an election petition under sections 80, 80A and 81
G of the Representation of the People Act, 1951 (hereinafter 'the Act', for short).
    The main grounds on which the election of respondent No. I was sought to
                                                                                      ~-
    be set aside were that the nomination of one on the respondents was improperly
    accepted which had resulted in the result of the election being materially
    affected and that the respondent No. I was guilty of having committed the
    corrupt practice of obtaining the assistance of a police officer within the
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       SARDAR HARCHARAN SINGH BRAR v. SUKH DARSHAN SINGH [LAHOTI,O.]      685

meaning of Section 123(7) of the Act. Several instances of commission of         A
such corrupt practice were set out in the election petition.

      On the pleadings being completed, the learned Designated Election
Judge of the High Court framed six issues, out of which the following two
have been heard and decided as preliminary issues by the impugned judgment:-
                                                                                 B
       I.   Whether the averments made in the election petition lack in
            material facts and do not disclose any cause of action? If so, its
            effect? OPR
       2    Whether the affidavit filed in support of the election petition is
            not valid? If so, its effect? OPR                                    C
      Both the issues have been answered against the election petitioner-
appellant with the result the election petition has been held liable to be
dismissed and dismissed accordingly. The election petitioner has come up in
appeal under Section 116 A of the Act.
                                                                                 D
       The short point which arises for decision in this appeal is whether the
election petition could have been held liable to be dismissed at the threshold
and without being tried and heard on merits. Under Section 86( I) of the Act,
an election petition is liable to be dismissed without being set down for trial,
if it does not comply with the provisions of Section 81 or Section 82 or
Section 117. Sections 81, 82 and 1I7 respectively provide for presentation of E
petition, parties to the petition and security for cost. Obviously the objections
raised by the contesting respondents forming basis of the two preliminary
issues are not covered by Section 86(1) of the Act. The High Court has
proceeded on the premises that inasmuch as the averments made in the
election petition alleging the commission of corrupt practice do not disclose F
material facts as required by Section 83 of the Act and the election petition
is- also not supported by an affidavit as required by proviso to sub-Section
(I) of Section 83 of the Act read with Rule 94A of the Conduct of Elections
Rules, 1961 (hereinafter 'the Rules', for short), the election petition does not
disclose any cause of action and therefore does not raise any triable issue.
It is the correctness or otherwise of the view taken by the High Court which G
arises for consideration.

      Section 83 of the Act and Rule 94A of the Rules provide as under :



                                                                                 H
    686                     SUPREME COURT REPORTS [2004] SUPP. 5 S.C.R.

A         "83. Contents of petition-{ I) An election petition

                (a) shall contain a concise statement of the material facts on
                    which the petitioner relies;

                 (b) shall set forth full particulars of any corrupt practice that the
                     petitioner alleges including as full a statement as possible of
B
                     the names of the parties alleged to have committed ·such
                     corrupt practice and the date and place of the commission
                     of each such practice; and

                (c) shall be signed by the petitioner and verified in the manner
c                   laid down in the Code of Civil Procedure, 1908 (5 of 1908) for
                    the verification of pleadings:

                 [Provided that where the petitioner alleges any corrupt practice,
                 the petition shall also be accompanied by an affidavit in the
                 prescribed form in support of the allegation of such corrupt
D                practice and the particulars thereof.]

            (2) Any schedule or annexure to the petition shall also be signed by
            the petitioner and verified in the same manner as the petition.

                                           ··Rules

E           94A. Form ofaffidavit to be filed with election petition-The affidavit
            referred to in the proviso to sub-section (I) of section 83 shall be
            sworn before a magistrate of the first class or a notary er a
            commissioner of oaths and shall be in Form 25."

          So far as the law centering around the above-said prov1s1ons is
F   concerned, several decided cases of this Court have covered the field and the
    law is settled leaving hardly any scope for further elaboration. We would refer
    only to a few of the cases which would suffice for above purpose.

          In Samant N. Balakrishna and Anr. v. George Fernandez and Ors.,
G   [1969] 3 sec 238, the mandatory nature of the provisions contained in Section
    83 was dealt with and consequences flowing from any breach of provision
    were set out. It was held that Section 83 is mandatory and requires the
    election petition to contain first a concise statement of material facts and then
    requires the fullest possible particuJars. The word 'material' shows that the
    facts necessary to formulate a complete cause of action must be stated.
H   Omission of a single material fact leads to an incomplete cause of action and
           SARDAR HARCHARAN SINGH BRAR v. SUKH DARSHAN SINGH [LAHOTI, CJ.]       687

    the statement of claim becomes bad. The function of particulars is to present       A
    as full a picture of the cause of action with such further information in detail
    as to make the opposite party understand the case he will have to meet. There
    may be some overlapping between material facts and particulars but the two
    are quite distinct. The material facts will show the ground of corrupt practice
    and the complete cause of action and the particulars will give the necessary        B
    information to present a full picture of the cause of action.

          Some of the principles elaborated in Raj Narain v. Smt. Indira Nehru
    Gandhi and Anr., [ 1972] 3 SCC 850 are relevant for our purpose. Dealing with
    the corrupt practice, the Court held that :

                  While a corrupt practice has got to be strictly proved, it does not
                                                                                        c
                  follow that a pleading in an election proceeding should receive
                  a strict construction. Even a defective charge does not vitiate a
                  criminal trial unless it is proved that the same has prejudiced the
                  accused. If a pleading on a reasonable construction could sustain
                  the action, the court should accept that construction. The courts     D
                  are reluctant to frustrate an action on technical grounds.
           (ii)   The charge of corrupt practice in an election petition is a very
                  serious charge and has to be proved. It may or may not be


-                 proved. The allegations may be ultimately proved or not proved.
                  But the question for the courts is whether a petitioner should be
                  refused an opportunity to prove those allegations merely because
                  the petition was drafted clumsily. Opportunity to prove should
                                                                                        E


                  not be refused.

           (iii) If the allegations made in an election petition regarding a corrupt
                 practice do not disclose the constituent parts of the corrupt          F
                 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.                                                             G
                      "Material facts" in Section 83 of the Representation of People
                  Act, 1951 shows that the ground of corrupt practice and the facts
                  necessary to formulate a complete cause of action must be stated.
                  The function of the particulars is to present a full picture of the
                  cause of action so as to make the opposite party understand the       H
     688                     SUPREME COURT REPORTS [2004] SUPP. 5 S.C.R.

.A                case he has to meet. Under Section 86(5) of the Representation
                  of People Act if the corrupt practice is alleged in the petition the
                  particulars of such corrupt practice may be amended or amplified.

            (iv) An election petition is not liable to be dismissed in limine because
                 full particulars of corrupt practice alleged were not set out. If an
B                objection was taken and the Tribunal was of the view that full
                 particulars have not been set out, the petitioner has to be given
                 an opportunity to amend or amplify the particulars. It is only in
                 the event of non-compliance with such order to supply the
                 particulars, that the charge which remained vague could be struck
c                down.

           The Court sounded a note of caution : "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 with a game of chess. Provisions of law are not mere fonnulae
     to be observed as rituals. Beneath the words of a provision of law, generally
D    speaking there lies a juristic principle. It is the duty of the court to ascertain
     that principle and implement it."

           The principles have been reiterated recently in H.D. Revanna v. G.
     Puttaswamy Gowda and Ors., [ 1999] 2 SCC 217, V.S. Achuthanandan v. P.J.
     Francis and Anr., [1999] 3 SCC 737 and Mahendra Pal v. Ram Dass Malander
E    and Ors., [2000] 1 sec 261. We are tempted to quote the following passage
     from the three-Judge Bench decision in Mahendra Pal's case (supra) wherein
     the learned Chief Justice has summed up the statement of law in the following
     words:

                 "Section 83(1 )(a) of the Act mandates that in order to constitute
F
             a cause of action, all material facts, that is, the basic and preliminary
             facts which the petitioner is bound under the law to substantiate in
             order to succeed, have to be pleaded in an election petition. Whether
             in an election petition, a particular fact is material or not and as such
             required to be pleaded is a question which depends upon the nature
G            of the charge levelled ai.d the facts and circumstances of each case.
             The distinction between "material facts" and "particulars" has been
             explained by this Court in a large number of cases and we need not
             refer to all those decided cases. Facts which are essential to disclose
             a complete cause of action are material facts and are essentially
H            required to be pleaded. On the other hand "particulars" are details of
             the case set up by the party and are such pleas which are necessary
       SARDAR HARCHARAN SINGH BRAR v. SUKH DARSHAN SINGH [LAHOTI,CJ.]       689

       to amplify, refine or explain material facts. The function of particulars    A
       is, thus, to present a full picture of the cause of action to make the
       opposite party understand the case that has been set up against him
       and which he is required to meet. The distinction between "material
       facts" and "material particulars" is indeed important because different
       consequences follow from a deficiency of such facts or particulars in
       the pleadings. Failure to plead even a single material fact leads to an      B
       incomplete cause of action and incomplete allegations of such a
       charge are liable to be struck off under Order 6 Rule 16 of the Code
       of Civil Procedure. In the case of a petition suffering from a deficiency
       of material particulars the court has the discretion to allow the
       petitioner to supply the required particulars even after the expiry of       C
        limitation. Thus, whereas it may be permissible for a party to furnish
       particulars even after the period of limitation for filing an election
       petition has expired, with the permission of the court, nfl material fact
       unless already pleaded, can be permitted to be introduced, after the
       expiry of the period of limitation."
                                                                                    D
       The learned Designated Election Judge has been undoubtedly at pains
in dealing with the several averments made in the election petition and closely
examining and analysing the same in order to find out whether the requirements
of Section 83 (1) were satisfied. The learned Judge then formed an opinion
that the averments made were lacking in material facts. During the course of        E
hearing, the learned counsel for both the parties have carried us through the
averments made in the election petition, parawise and almost word by word,
in an attempt at substantiating the submissions made by them respectively.
According to the learned counsel for the writ petitioner-appellant, the
averments made in the election petition contained not only the material facts
but also the particulars and it is not necessary to plead the evidence or the       F
matters of minute details. On the contrary, the learned counsel for the
respondent No. I, while supporting the judgment of the High Court, has
submitted that the averments made in the election petition fall short of
disclosing all material facts and therefore, cannot be tried.

       Having gone through the contents of the election petition, we are            G
satisfied that the High Court has not been right in directing the petition to
be dismissed at the threshold by forming an opinion that the averments made
in the election petition were deficient in material facts. It is not necessary to
burden this judgment with reproduction of the several avennents made in the
election petition. The High Court has already done it. The test laid down in        H
      690                     SUPREME COURT REPORTS [2004] SUPP. 5 S.C.R.

 A the several authorities referred to hereinabove and in particular in the case
      of Raj Narain (supra) is fully satisfied. The grounds of corrupt practice and
      the facts necessary to formulate a complete cause of action have been stated.
      Even the particulars have been given. However, if the Court feels that the
      particulars as given in the petition are deficient in any manner the petitioner
      can be directed to supply the particulars and make the defiliency good. In
 B    any case, deficiency in particulars could not have been a ground for dismissing
      the petition at the threshold. It is only the non-supply of particulars though
      ordered by the Court which could have led to either striking off of the
      pleadings or refusal to try the related instances of alleged corrupt practice.
      We cannot countenance the view taken by the High Court.
 c           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 (I) of Section 83
      of the Act is couched in a mandatory form inasmuch as it provides that a
      petition alleging corrupt practice shall be accompanied by an affidavit in the
- D   prescribed form in support of the allegations of such corrupt practice and .the
      particulars thereof. The form is prescribed by Rule 94A. But at the same time,
      it cannot be lost sight of that failure to comply with the requirement as to
      filing of an affidavit cannot be a ground for dismissal of an election petition
      in limine under sub-Section (I) of Section 86 of the Act. The point is no more
 E    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., (2001] 4 SCC 428 and Dr. Vijay Laxmi Sadho v.
      Jagdish (2001] 2 SCC 247, both three-Judges Bench decisions, wherein the
      learned Chit:f 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
 F    Act if the election petition does 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, however,
 G    does not attract the consequences envisaged by Section 86( I) 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
      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
 H
             SARDAR HARCHARAN SINGH BRAR v. SUKH DARSHAN SINGH [LAHOTI, CJ.]    691

    an election petition but Section 86( I) of the Act in tenns cannot be attracted    A
    to such a case.


-         Having fonned 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 detennined and adjudicated upon at the trial, as held in G.        B
    Mallikarjunappa and Anr. 's case (supra).

           For the foregoing reasons, the appeal is allowed with costs. The judgment
    of the High Court is set aside. The election petition shall stand restored on
    the file of the High Court for hearing and decision consistently with what has
    been stated hereinabove.

    S.K.S.                                                         Appeal allowed.