Ujjal Bhuyan, C.J.

1. This application has been filed under Order VII Rule 11 of the Code of Civil Procedure, 1908 (briefly, 'CPC' hereinafter) by the first respondent i.e., Bheemrao Baswanthrao Patil (who would be referred to hereinafter as the 'returned candidate') for rejection of the election petition i.e., E.P. No. 34 of 2019 filed by the petitioner K. Madan Mohan Rao (referred to hereinafter as 'the election petitioner') on the ground that the election petition is without any cause of action and is barred by limitation.

2. Heard Mr. Harin P. Raval, learned Senior Counsel for Mr. N. Manohar representing the returned candidate as well as Mr. M.P. Chandramouli, learned Senior Counsel representing Mr. Ch. Satyasadhan, learned counsel for the election petitioner.

3. Before adverting to the application filed under Order VII Rule 11 of CPC (referred to hereinafter as 'the rejection application), it would be apposite to advert to the election petition. The election petition has been filed by the election petitioner for setting aside the election of the returned candidate to the Lok Sabha from No. 05-Zaheerabad Parliamentary Constituency in the general elections held on 11.04.2019 and thereafter to declare him as the duly elected candidate from the said constituency. The election petition has been filed under Sections 81 and 84 of the Representation of the People Act, 1951 read with Section 100(1)(d)(i), (ii) (iii) and (iv) of the aforesaid Act.

4. In the election which was held on 11.04.2019, there were in all twelve candidates who had contested from No. 5-Zaheerabad Parliamentary Constituency. Election petitioner contested as a candidate belonging to the Indian National Congress, whereas the returned candidate contested from the Telangana Rashtra Samithi. At the end of the counting, it appeared that election petitioner had secured a total of 4,28,015 votes, whereas the returned candidate had secured a total of 4,34,244 votes, thus he was declared elected by a margin of 6,229 votes. The results were declared on 23.05.2019. Challenging the election of the returned candidate, the related election petition has been filed.

5. It is alleged that election of the returned candidate is liable to be set aside for violation of Election Commission Guidelines formulated pursuant to the judgment of the Supreme Court in Public Interest Foundation v. Union of India (2019) 3 SCC 224 by the returned candidate. It is alleged that as per the aforesaid guidelines dated 10.10.2018, all candidates were required to submit copies of the newspapers in which their declarations about criminal cases were published to the concerned District Election Officer along with the accounts of election expenses. It is alleged that the returned candidate did not mention about any pending as well as convicted criminal cases. Besides declaration of criminal cases in newspapers should be published in font size of at least twelve and suitably positioned in the newspapers so that directions for wide publicity were complied with in letter and spirit. Publication by the returned candidate in different newspapers was way below the minimum font size of twelve. That apart, the returned candidate had published in English language the aforesaid information in Telugu newspapers i.e., in Andhra Prabha on 30.03.2019 and Mana Telangana on 08.04.2019. Thus, this was an attempt to deceive the electorate.

5.1. As per Section 6A of Form 26 (election affidavit) as well as guidelines dated 10.10.2018, details of criminal cases should be furnished separately for each case in separate rows in the newspapers as well as in the election affidavit. But the returned candidate had published eighteen different cases in three rows i.e., six cases in each row, that too in a small font to make it appear that there were only three cases. This is alleged to be in violation of the Election Commission Guidelines as well as Form 26 and an attempt to deceive the electorate.

5.2. Election petitioner has also alleged that as per Election Commission Guidelines dated 10.10.2018, the details of criminal cases should be published in newspapers having wide circulation in the constituency. This is intended to provide the electorate to have an informed choice. However, the returned candidate chose the least circulated newspapers to publish the details of his criminal cases i.e., Mana Telangana, Andhra Prabha and Namasthe Telangana. As per Audit Bureau of Circulations, the highest circulated daily newspapers in Telugu are Eenadu, Sakshi and Andhra Jyothi. In addition, the returned candidate had chosen a least known or less viewed television channel called Metro TV to intimate about his criminal cases. Thus, it is alleged that returned candidate did not want voters in his constituency to know about his criminal cases. Such conduct is in clear violation of Election Commission Guidelines dated 10.10.2018.

5.3. Another ground of challenge is that returned candidate has not disclosed one criminal case pending before the Chief Judicial Magistrate, Garhwa District, Jharkhand bearing Crime Report No. 96P, Case No. CF 97/13 dated 20.03.2013 in the election affidavit. In the said case, the returned candidate is an accused under the Indian Forest Act, 1927 read with Bihar Amended Forest Act, 1989 under Sections 33,41, 42 and 66 for illegal mining and excavation work. As per FIR dated 20.03.2013 under Section 52 of the Bihar Amended Forest Act, 1989, the police had seized the properties and had arrested the accused persons.

5.4. Returned candidate in Form 26 (election affidavit) had written 'not applicable' as against paragraph 6 dealing with 'cases of conviction'. It is contended that this is in clear violation of Section 100(1)(d) of the Representation of the People Act, 1951 as the returned candidate was convicted in two cases, details of which have been mentioned. In Case No. 20 of 2012, Labour Enforcement Officer v. M/s. Patil Construction represented by (1) Mr. B.B. Patil (partner) and (2) Mr. M.B. Patil (partner) before the Special Divisional Judicial Magistrate, Porahat at Chaibasa, the returned candidate was convicted on 30.07.2013 for non-payment of minimum wages to the workers under the Payment of Wages Act, 1936 and Payment of Wages (Mines) Rules, 1956. The second case is under Section 22A of the Minimum Wages Act, 1948, Labour Enforcement Officer v. M/s. Patil Construction represented by (1) Mr. B.B. Patil (partner) and (2) Mr. M.B. Patil (partner) before the Sub Divisional Judicial Magistrate, Porahat at Chaibasa being Case No. 1 of 2013 for non-maintenance of record of the workers/employers. In this case, returned candidate was convicted on 05.09.2017.

5.5. In addition, election petitioner has stated that the returned candidate is popularly known by the name B.B. Patil in his constituency. Whether it is his official website or facebook page or in his twitter account, his name is invariably mentioned as B.B. Patil. In the election affidavit also, he mentioned his name as B.B. Patil. Again, whether it is in the print media or in the electronic media, he is addressed by the name B.B. Patil. During campaigning also, he used the name B.B. Patil. He chose to use the name B.B. Patil on the EVM machine as well. However, when it came to disclosure of his criminal cases in newspapers, he chose to use the name Bheemrao Baswantrao Patil. Use of a different identity i.e., a lesser known identity in respect of disclosure of criminal cases only goes to show the intent of the returned candidate to deceive the electorate.

5.6. Election petitioner has also alleged violation of the Election Commission Guidelines dated 10.10.2018 by the TRS Political Party of which the returned candidate was the official nominee. It is contended that in the official website of TRS Political Party, the name of the returned candidate was published as B.B. Patil. During the entire campaigning, the name B.B. Patil was used to refer to the returned candidate by members of the TRS Political Party in various public platforms. His name in the ballot paper was also printed as B.B. Patil, but when it came to disclosure of particulars of criminal cases, the returned candidate chose to identify himself as Bheemrao Baswantrao Patil. Same allegations made against the returned candidate have been made against the TRS Political Party as well.

5.7. Referring to the decision of the Supreme Court in Peoples Union for Civil Liberties v. Union of India (2013) 10 SCC 1, election petitioner has contended that disclosure of antecedents makes the election a fair one. A voter is entitled to have an informed choice. If the information required to be furnished is presented in such a manner that it does not reach the electorate, it would make the right to vote redundant and thus lead to destruction of democracy. In the circumstances, it is contended that election of the returned candidate from No. 5-Zaheerabad Parliamentary Constituency should be declared as void and be set aside. Consequently, election petitioner should be declared as the elected candidate from the said constituency.

6. The returned candidate has filed I.A. No. 1 of 2020 under Order VII Rule 11 of CPC for rejection of the election petition on the ground of there being no cause of action and the election petition being barred by limitation. First and foremost, it is alleged that it is not pleaded in the election petition as to how and for what reasons non-compliance of any mandatory requirement of law that nomination paper of the returned candidate can be said to have been improperly accepted. Neither a specific plea has been raised nor are material facts pleaded contending that result of the election has been materially affected due to improper acceptance of the nomination paper of the returned candidate.

6.1. Other allegations relating to publications in newspapers with regard to pendency of criminal cases against the returned candidate did not come within the ambit of Section 100 of the Representation of People Act, 1951 (briefly, 'the 1951 Act' hereinafter). Consequently, none of the allegations made in the election petition can be the basis for declaring the election of the returned candidate null and void.

6.2. It is alleged that the election petition is not presented in the manner prescribed under Section 81(3) of the 1951 Act. Sub-section (3) of Section 81 of the 1951 Act mandates that every election petition shall be accompanied by as many copies thereof as there are respondents mentioned in the election petition and every such copy shall be attested by the election petitioner under his own signature to be a true copy of the election petition. It is stated that returned candidate had received copy of the election petition through his counsel from the Registry. But copy of the said election petition along with documents was not attested by the election petitioner under his own signature as true copies of the election petition. That apart, signatures on the copy of the election petition and on the documents did not match with the signature of the election petitioner subscribed on the original election petition.

6.3. Referring to the grounds set forth in the election petition for declaration of the election of the returned candidate as null and void under Section 100(1)(d) of the 1951 Act, the returned candidate has contended that none of the grounds disclosed any cause of action for setting aside the election result of the returned candidate. Allegations made in the election petition are not supported by any material facts. Therefore, requirement of the provisions of Section 83(1)(a) of the 1951 Act has not been satisfied.

6.4. It is contended that election petitioner has failed to set forth full particulars of any corrupt practice indulged in by the returned candidate as alleged. Averments made in the election petition are highly insufficient or inadequate to proceed with the trial of an election petition. As a matter of fact, election petition lacks basic material facts necessary for creating a cause of action to maintain an election petition.

6.5. Adverting to the instances of alleged noncompliance to the Election Commission Guidelines, it is stated that returned candidate has not been convicted for any offence. Therefore, requirements of Section 33A of the 1951 Act was complied with. None of the proceedings referred to in the election petition and relatable to the Payment of Wages Act, 1936 and Minimum Wages Act, 1948 fall under Section 33A of the 1951 Act. Those cannot be construed to be criminal proceedings. Neither Section 33A nor Section 36(2)(b) contemplates disclosure of any legal proceedings which have no criminal or other dimension to be mentioned in the nomination paper.

6.6. Returned candidate has contended that since a case of improper acceptance of nomination paper has not been made out, no cause of action is available to the election petitioner. Therefore, the election petition is liable to be dismissed.

6.7. There is not a single averment in the entire election petition that the nomination paper of the returned candidate was wrongly accepted and that the same was required to be rejected. Unless election petitioner makes out a specific case that nomination paper of the returned candidate was wrongly accepted by the returning officer which has materially affected the election of the election petitioner, there can be no cause of action that arose on the date of submission of Form 26 (election affidavit) for filing of the election petition.

6.8. There is also no statement in the election petition that non-disclosure of pending and convicted criminal cases against the returned candidate amounted to use of corrupt practices within the meaning of Section 100 of the 1951 Act. That apart, there is no pleading as to why election petitioner did not raise any objection at the time of scrutiny of the nomination papers to the nomination form submitted by the returned candidate before the returning officer.

6.9. Returned candidate has stated that from the document annexed to the election petition by the election petitioner, accused in the F.I.R. placed at page No. 184, are M.B. Patil and B.B. Patil Constructions Limited, Swargate, Pune. Nothing has been pleaded to show as to how the returned candidate is related to M.B. Patil or to B.B. Patil Constructions Limited. Merely because the name B.B. Patil appears in the name of the company arrayed as an accused would not mean that the returned candidate is an accused in the said proceedings. The returned candidate cannot be equated with a partnership firm or a company.

6.10. Language of Section 33A and Form 26 is very clear. Candidates should disclose details of the criminal cases in which they are convicted. There is nothing to show that returned candidate was convicted for a criminal offence. It is stated that there is a qualitative difference between criminal offences and civil offences or quasi-criminal offences. Proceedings under the Payment of Wages Act, 1936 or under the Minimum Wages Act, 1948 are adjudicatory in nature and cannot be termed as criminal. Merely because a penalty is imposed under the aforesaid Acts, that by itself would not render the penalty equivalent to conviction in a criminal offence. There is no pleading in the election petition that election petitioner was convicted for a criminal offence, thus attracting disqualification under the 1951 Act.

6.11. Insofar the allegation that font size of the publications declaring criminal antecedents of the returned candidate was less than the prescribed font size of twelve, it is stated that merely by stating that the font size was not in accordance with the prescribed font size would not substantiate the allegations. Election petitioner has not mentioned the actual font size used in those publications. That apart, Election Commission Guidelines dated 10.10.2018 though prescribes the font size, however does not indicate as to the consequences of non-adherence to the same. Once information is published in a legible form, there is a substantial compliance to the requirements of law.

6.12. Regarding the allegation of the election petitioner that the name used by the returned candidate in different fora was different, it is stated that no material particulars have been pleaded in this regard. It is not stated as to whether there was some other candidate having similar name and which would have confused the electorate. It is stated that while name of the returned candidate is B.B. Patil but in newspaper publications his name has been referred to as Bhimrao Baswantrao Patil. Election petitioner did not raise any objection in this regard at the time of scrutiny of nomination papers by the election officer.

6.13. As regards non-publication of information in widely circulated newspapers, it is contended that the phrase "wide circulation" would mean having higher circulation. Thus publication of information in newspapers having widest circulation would be a misconstruction of the legislative intent.

6.14. That apart, respondent No. 1 has pointed out that various office objections were raised as regards the election petition. Unless the office objections are complied with, election petition would remain defective and is liable to be rejected.

6.15. Thus, there is no cause of action for filing the election petition. Omission of a single material fact would lead to an incomplete cause of action. It is also stated that all material facts must be pleaded within the period of limitation. Election petitioner had failed to plead necessary material facts within the limitation period. Thus, for all the aforesaid reasons, election petition is liable to be dismissed there being no cause of action and being barred by limitation.

7. Election petitioner has filed counter affidavit to the rejection application. At the outset, it is stated that returned candidate had willfully avoided service of notice. Rejection application has been filed after one year of filing of the election petition and after nine months of filing of Vakalat by learned counsel for the returned candidate. Reference has been made to the docket proceedings wherefrom it is contended that returned candidate had willfully avoided notice of the Court. It was only after the Court had granted permission for service of notice by way of newspaper publication and after publication of such notice in newspapers i.e., Indian Express on 01.01.2020 and Namaste Telangana on 02.01.2020 that the returned candidate appeared through his counsel on 20.01.2020. Rejection petition has been filed nine months thereafter on 28.09.2020. On this ground itself, the rejection petition should be dismissed.

7.1. As per Section 87 of the 1951 Act, the returned candidate ought to have filed written statement within 120 days of receipt of summons. Under sub-section (7) of Section 86 of the 1951 Act, every election petition should be tried expeditiously and within six months from the date of presentation.

7.2. It is averred that election petitioner has sought for declaration of the election of the returned candidate as null and void and to declare the election petitioner as the elected candidate from No. 5-Zaheerabad Parliamentary Constituency in the election held on 11.04.2019 under Section 84 of the 1951 Act. Allegation that election petition does not contain material facts to the effect that non-compliance to the requirements of Sections 81 and 83 of the 1951 Act had materially affected the election result has been denied and disputed. It is the case of the election petitioner that returned candidate won the election by a meagre margin of 6,229 votes by way of deception, violating Guidelines of Election Commission dated 10.10.2018. In the election petition election petitioner has explicitly stated about the pending and convicted criminal cases of the returned candidate and also filed evidence in Annexure-V. That apart, election petitioner has disclosed material facts and also a cause of action in terms of Section 100(1)(d) and Section 83(1)(a) of the 1951 Act.

7.3. It is reiterated that criminal case is pending against the returned candidate under Sections 33, 41 and 42 of the Bihar Amendment Forest Act, 1989, punishment for which would be imprisonment for a minimum period of six months which may extend to two years. It is denied that conviction under the Payment of Wages Act, 1936 or under the Minimum Wages Act, 1948 is outside the purview of criminal conviction. It is evident that the returned candidate did not disclose in the election affidavit about the pending and convicted criminal cases against him which is in violation of Election Commission Guidelines dated 10.10.2018. Such non-disclosure amounts to corrupt practice within the meaning of Section 100 of the 1951 Act.

7.4. Denying all the contentions made in the rejection application, election petitioner contends that returned candidate having not chosen to file written statement, the proceedings should be set ex-parte. No case for filing rejection application under Order VII Rule 11 of CPC is made out. The same should be dismissed with exemplary costs.

8. Returned candidate has filed reply affidavit. He has denied the allegation that he had willfully avoided notice. Insofar filing of written statement is concerned, stand taken is that till such time a decision is taken on the rejection application, question of filing written statement would not arise. Since the election petition is devoid of any material particulars, it deserves to be dismissed at the threshold. Election petitioner has failed to disclose any material facts which has materially affected the election of the returned candidate. Margin of victory is immaterial. Election petition is a frivolous one devoid of material facts and therefore, should be rejected at the threshold.

8.1. He has further stated that he has not been convicted for any offence muchless offences falling under Section 8 or Section 33A of the 1951 Act. Question of disclosure of information as regards proceedings under the Payment of Wages Act, 1936 or under the Minimum Wages Act, 1948 does not arise. All relevant facts were disclosed in Form 26. Thereafter, contentions made in the rejection application have been reiterated. Therefore, returned candidate seeks rejection of the election petition.

9. Learned Senior Counsel for the returned candidate Mr. Harin P. Raval in support of the application for rejection of the election petition argued that the election petition was not presented in accordance with the provisions of Section 81(1) of the 1951 Act by the election petitioner. Therefore, the same is required to be dismissed under sub-section (1) of Section 86 of the 1951 Act. In support of such submission, learned Senior Counsel has placed reliance of a decision of the Supreme Court in G.V. Sreerama Reddy v. Returning Officer (2009) 8 SCC 736. He submits that the election petition does not disclose any cause of action and triable issues. Therefore, the election petition may be dismissed under Order VII Rule 11 of CPC. Mere non-compliance or breach of Constitution of India or any statutory provision would not invalidate the election of the returned candidate. In support of such contention, he has placed reliance on a decision of the Supreme Court in Mangani Lal Mandal v. Bishnu Deo Bhandari (2012) 3 SCC 314.

9.1. Further contention of learned Senior Counsel for the returned candidate is that material facts need to be pleaded in the election petition. Omission of a single material fact leads to an incomplete cause of action as held by the Supreme Court in Samant N. Balkrishna v. George Fernandez (1969) 3 SCC 238. No material facts have been pleaded by the election petitioner. Besides grounds for declaring an election void must conform to the requirement of Section 100 of the 1951 Act. In this regard, he also submits that non-mentioning of criminal antecedents cannot be a ground to reject nomination paper.

9.2. Carefully reading the averments made in the election petition, learned Senior Counsel submits that Supreme Court has made it clear in T. Arivandandam v. T.V. Satyapal (1977) 4 SCC 467 as well as in Popat and Kotecha Property v. State Bank of India (2005) 7 SCC 510 that clever drafting may create an illusion of a cause of action but if in fact, there is no cause of action the plaint can be rejected. Further, the grounds of disqualification are enumerated by the Legislature; no new ground of disqualification can be added or introduced.

9.3. Election petition must contain concise statement of material facts. Bare allegations are not treated as material facts. In support of such a contention, learned Senior Counsel Mr. Harin P. Raval has referred to the decisions of the Supreme Court in Jitu Patnaik v. Sanatan Mohakud (2012) 4 SCC 194 as well as in Anil Vasudev Salgaonkar v. Naresh Kushali Shigaonkar (2009) 9 SCC 310. Learned Senior Counsel has referred to various documents on record as well as the certified copy of F.I.R. and submits that election petitioner has resorted to falsification and fabrication of documents.

9.4. Learned Senior Counsel while acknowledging that at the stage of deciding an application filed under Order VII Rule 11 of CPC, only the averments made in the election petition have to be looked into but at the same time he submits that documents annexed with the election petition in support of the averments can also be looked into. A bare perusal of the document filed along with the election petition at page 108 and the translation copy filed at page 184 would reveal that the crime report does not name the returned candidate as an accused person. Name of the accused are M.B. Patil and B.B. Patil Constructions Limited, the latter being a distinctly different entity from the returned candidate. Neither the returned candidate has been mentioned as an accused nor any cognizance has been taken against him. Thus, it is evident that the returned candidate is not an accused. If that is the actual position, no evidence or trial is required. Election petitioner has no cause of action on the said count.

9.5. Denying the allegation of suppression of any pending cases, learned Senior Counsel submits that there is no question of not complying with the guidelines of the Election Commission but in the document presented by the returned candidate pertaining to cases under the Payment of Wages Act, 1936 or under the Minimum Wages Act, 1948 there is clear interpolation and forgery. He submits that from the pleadings in the election petition and the documents annexed thereto, it would be evident that there is no cause of action for filing of the election petition and therefore, the same is liable to be rejected under Order VII Rule 11 of CPC.

9.6. After taking the Court to the averments made in the election petition as well as the prayer made thereunder, learned Senior Counsel submits that there is clear absence of challenge to the election of the returned candidate on the ground of any corrupt practice being indulged in by the returned candidate. Thus there is no cause of action for maintaining the election petition. Therefore, the said election petition is liable to be dismissed.

9.7. Further, he submits that there is not a single averment in the entire election petition stating that noncompliance by the returned candidate to the guidelines of the Election Commission being a ground under Section 100(1)(d)(iv) of the 1951 Act has led to the result of the returned candidate being materially affected. Further, there is no averment to the effect that because of the corrupt practice(s) indulged in by the returned candidate, result of the election has been materially affected. In this connection, reference has been made to the decision of the Supreme Court in Mangani Lal Mandal (supra).

9.8. He submits that there is no averment in the entire election petition that the alleged non-disclosure of the pending criminal cases under the Payment of Wages Act, 1936 or under the Minimum Wages Act, 1948 would amount to 'undue influence' within the meaning of Section 123(2) of the 1951 Act. As a matter of fact, he submits that the returned candidate is neither named as an accused nor is proceeded against as an accused in the alleged pending criminal case. Insofar the two cases under the Payment of Wages Act, 1936 or under the Minimum Wages Act, 1948 are concerned, those are neither criminal cases nor is there any criminal conviction thereunder. These are cases of statutory penalties which do not partake the colour of any criminality or criminal offence.

9.9. In the course of his arguments, learned Senior Counsel for the returned candidate has also argued that the election petition was presented through an advocate and not personally by the election petitioner as is mandatorily required under Section 81(1) of the 1951 Act and as interpreted by the Supreme Court in G.V. Sreerama Reddy (supra). Therefore, on this ground alone, the election petition is liable to be rejected.

9.10. Mr. Raval, learned Senior Counsel for the returned candidate has drawn the attention of the Court to Sections 82 and 86 of the 1951 Act. He submits that one of the reliefs claimed by the election petitioner is that he should be declared as the elected candidate after nullifying the election of the returned candidate. However, for such a prayer to be considered, all the candidates in the election have to be arrayed as parties to the election petition, which election petitioner has failed to do. Therefore, on this ground itself, the election petition is liable to be rejected.

9.11. Finally, he submits that there is not a single averment in the entire election petition contending that because of non-compliance to the provisions of the 1951 Act or the Election Commission Guidelines or on account of improper acceptance of nomination paper, the result of the election insofar it concerns the returned candidate is materially affected. In the absence of such a pleading, the election petition is not maintainable. The same is liable to be rejected.

9.12. Mr. Raval, learned Senior Counsel has not only submitted written arguments but has also filed several compilation of judgments in support of his contentions.

10. Mr. M.P. Chandramouli, learned Senior Counsel for the election petitioner submits that contrary to what has been pleaded and argued, the application filed by the returned candidate under Order VII Rule 11 of CPC is not only misconceived but is also thoroughly frivolous. Adverting to Order VII Rule 11 of CPC, he submits that scope of such an application is very limited.

10.1. For deciding an application under Order VII Rule 11 of CPC, only the averments in the plaint are to be looked at. It is impermissible to look at the defence; go into the merits or demerits of the case; examine any document beyond what is stated in the plaint; evaluate the sufficiency or relevancy of the pleadings; question of limitation or res judicata are matters of trial and not to be considered while dealing with an application under Order VII Rule 11 of CPC. That apart, the plaint has to be read as a whole and not in a piecemeal manner.

10.2. On the allegation that material facts and particulars have not been pleaded in the election petition, learned Senior Counsel has drawn the attention of the Court to the averments made in various paragraphs of the election petition and submits that there has been full disclosure of all material facts in the election petition. That apart, returned candidate has not stated as to what are the material particulars that are lacking in the election petition. Insofar point of limitation is concerned, there is nothing in the application filed by the returned candidate under Order VII Rule 11 of CPC as to how the election petition is barred by limitation. While presenting the application under Order VII Rule 11 of CPC, the returned candidate is basically putting forward his defence and has canvassed the merits of the case which is not permissible at this stage; it being a matter for trial.

10.3. Learned Senior Counsel for the election petitioner submits that it is evident that the returned candidate did not disclose about the criminal cases in Form 26 (election affidavit). Election petitioner has pleaded that the omission to mention the criminal cases has prevented the people from making an informed choice thereby hampering the spirit of democracy. It is axiomatic that by such omission, the election result has been materially affected. Further, placing reliance on the decisions of the Supreme Court in Durai Muthuswami v. N. Nachiappan (1973) 2 SCC 45, Jagjit Singh v. Dharam Pal Singh 1995 Supp (1) SCC 422 and Madiraju Venkata Ramana Raju v. Peddireddigari Ramachandra Reddy (2018) 14 SCC 1, he submits that when the nomination itself is not valid and consequently there is illegal or improper acceptance of nomination, question of specifically pleading that the same has materially affected the electoral outcome is not warranted. Further, he submits that if the election petition is read as a whole, it would show that endeavour of the election petitioner is to contend that non-disclosure of information in Form 26 (election affidavit) has unduly influenced the electorate resulting in a distorted electoral verdict. Insofar other allegations are concerned, such as, non-tallying of signatures, learned Senior Counsel submits that those are not grounds for rejection of election petition, those being curable defects.

10.4. On the contention of learned Senior Counsel for the returned candidate that the election petition was not personally presented by the election petitioner in the High Court Registry, he submits that this is not pleaded in the application for rejection of the election petition. It was a submission developed in the course of the arguments, though also earlier argued. Further, that is not a ground for rejection of a plaint under Order VII Rule 11 of CPC. Besides there is a note of the Registry pursuant to order of this Court dated 10.11.2021 which says that the election petition has been filed as per the rules framed by the High Court to regulate trial of election petitions. As per the Registry's note, it is not possible to now say after such a long time gap as to whether the election petition was presented by the petitioner in person or through his counsel. In any view of the matter, learned Senior Counsel submits that this is a matter for trial and cannot be argued at the stage of dealing with an application filed under Order VII Rule 11 of CPC. Further, nothing has been pleaded as to how the election petition is barred by limitation. As a matter of fact, the election petition was filed well within time.

11. Submissions made by learned counsel for the parties have received the due consideration of the Court.

12. At the outset, provisions of Order VII Rule 11 of CPC may be adverted to. Order VII deals with plaint. Rules 1 to 8 provide for particulars to be contained in a plaint, reliefs to be specifically stated etc. Rule 9 deals with procedure of admitting plaint whereas Rule 10 provides for return of plaint. If a plaint is filed before a Court which is not competent to deal with the plaint, then the plaint is to be returned to be presented to the court in which the suit should have been instituted. Rejection of plaint is dealt with in Rule 11. Order VII Rule 11 of CPC reads as follows:

"11. Rejection of plaint--The plaint shall be rejected in the following cases-

(a) where it does not disclose a cause of action;

(b) where the relief claimed is undervalued, and the plaintiff, on being required by the court to correct the valuation within a time to be fixed by the court, fails to do so;

(c) where the relief claimed is properly valued but the plaint is written upon paper insufficiently stamped, and the plaintiff, on being required by the court to supply the requisite stamp paper within a time to be fixed by the court, fails to do so;

(d) where the suit appears from the statement in the plaint to be barred by any law;

(e) where it is not filed in duplicate;

(f) where the plaintiff fails to comply with the provisions of Rule 9:

Provided that the time fixed by the court for the correction of the valuation or supplying of the requisite stamp papers shall not be extended unless the court, for reasons to be recorded, is satisfied that the plaintiff was prevented by any cause of an exceptional nature from correcting the valuation or supplying the requisite stamp papers, as the case may be, within the time fixed by the court and that refusal to extend such time would cause grave injustice to the plaintiff."

12.1. Thus Order VII Rule 11 says that the plaint shall be rejected - (a) where it does not disclose a cause of action; (b) where relief claimed is undervalued, and the plaintiff on being required by the Court to correct the valuation within a time to be fixed by the Court, fails to do so; (c) where reliefs claimed is properly valued but the plaint is written upon paper insufficiently stamped and the plaintiff on being required by the Court to supply the requisite stamp paper within a time to be fixed by the Court, fails to do so; (d) where the suit appears from the statement in the plaint to be barred by any law; (e) where it is not filed in duplicate; and (f) where the plaintiff fails to comply with the provisions of Rule 9. As per the proviso, the time fixed by the Court for correction of valuation or supplying of the requisite stamp paper shall not be extended unless the Court, for reasons to be recorded, is satisfied that the plaintiff was prevented by any cause of an exceptional nature for correcting the valuation or supplying the requisite stamp paper, as the case may be, within the time fixed by the Court and that refusal to extend such time would cause grave injustice to the plaintiff.

13. In Saleem Bhai v. State of Maharashtra (2003) 1 SCC 557, Supreme Court examined the scope and ambit of Order VII Rule 11 of CPC and held that the relevant facts which need to be looked into for deciding an application thereunder are the averments in the plaint. The trial Court can exercise the power under Order VII Rule 11 of CPC at any stage of the suit - before registering the plaint or after issuing summons to the defendant at any time before the conclusion of the trial. For the purpose of deciding an application under Order VII Rule 11 of CPC, averments in the plaint are germane; the pleas taken by the defendant in the written statement would be wholly irrelevant at that stage. A direction to file written statement without deciding the application under Order VII Rule 11 of CPC cannot but be a procedural irregularity touching the exercise of jurisdiction by the trial Court.

14. This position was reiterated by the Supreme Court in Mayar (H.K.) Limited v. Owners and Parties, Vessel M.V. Fortune Express (2006) 3 SCC 100, wherein Supreme Court has held that the Court has jurisdiction to reject the plaint where it does not disclose a cause of action, where the relief claimed is undervalued and the valuation is not corrected within the time as fixed by the Court, where insufficient court fee is paid and the additional court fee is not supplied within the period given by the court and where the suit appears from the statement in the plaint itself to be barred by any law. After analysing various case laws wherein principles governing Order VII Rule 11 of CPC has been laid down by the Supreme Court, it has been held that the plaint cannot be rejected on the basis of the allegations made by the defendant in his written statement or in an application for rejection of the plaint. The court has to read the entire plaint as a whole to find out whether it discloses a cause of action; and if it does, then the plaint cannot be rejected by the court exercising powers under Order VII Rule 11 of CPC. Supreme Court emphasised that whether the plaint discloses a cause of action is a question of fact which has to be gathered on the basis of the averments made in the plaint in its entirety taking those averments to be correct. A cause of action is a bundle of facts which are required to be proved for obtaining relief and for the said purpose, material facts are required to be stated but not the evidence. So long as the plaint discloses some cause of action which requires determination by the court, the mere fact that in the opinion of the Judge, the plaintiff may not succeed cannot be a ground for rejection of the plaint.

15. Having noted the above, we may advert to the relevant provisions of the 1951 Act and thereafter deal with the applicability of the principle of Order VII Rule 11 of CPC to trial of election petition.

16. The Representation of the People Act, 1951 (already referred to as 'the 1951 Act') has been enacted to provide for the conduct of election to the Houses of Parliament and to the House or Houses of the Legislature of each State, the qualifications and disqualifications for membership of those Houses, the corrupt practices and other offences at or in connection with such elections and the decision of doubts and disputes arising out of or in connection with such elections. Part VI of the 1951 Act deals with disputes regarding elections. Chapter II of Part VI comprises of Sections 80 to 85. Section 80 says that no election shall be called in question except by an election petition presented in accordance with the provisions of Part VI and as per Section 80A, it is the High Court having jurisdiction which is competent to try an election petition. Section 81 provides for presentation of petition. As per sub-section (1), an election petition calling in question any election may be presented on one or more of the grounds specified in sub-section (1) of Section 100 and Section 101 to the High Court. An election petition can be filed by any candidate at such election or by any elector of the constituency within 45 days from the date of declaration of result of election. Sub-section (3) says that every election shall be accompanied by as many copies thereof as there are respondents mentioned in the petition and every such copy shall be attested by the petitioner under his own signature to be a true copy of the petition. Parties to election petition is dealt with in Section 82. As per Section 82, petitioner shall join as respondents to his election petition where the petitioner, in addition to claiming declaration that the election of the returned candidate is void, claims a further declaration that he or any other candidate has been duly elected, all the contesting candidates other than the petitioner, and where no such further declaration is claimed, all the returned candidates.

16.1. Section 83 of the 1951 Act deals with contents of election petition. Sub-section (1) says that an election petition shall contain a concise statement of the material facts on which the petitioner relies; shall set forth full particulars of any corrupt practice that the petitioner alleges including as full a statement as possible of the commission of each such practice; and shall be signed by the petitioner and verified in the manner laid down in the CPC for verification of pleadings. As per the proviso, where the election petitioner alleges corrupt practice, the petition shall also be accompanied by an affidavit in the prescribed form in support of such corrupt practice and the particulars thereof. As per Section 84, a petitioner may in addition to claim a declaration that the election of all or any of the returned candidate is void, claim a further declaration that he himself or any other candidate has been duly elected.

16.2. Chapter III dealing with trial of election petitions comprises of Sections 86 to 107. As per sub-section (1) of Section 86, the High Court shall dismiss an election petition which does not comply with the provisions of Section 81 or Section 82 or Section 117. Sections 81 and 82 have already been discussed above. Section 117 deals with security for costs. At the time of presenting an election petition, the petitioner shall deposit in the High Court in accordance with the rules of the High Court a sum of Rs. 2,000/- as security for the costs of the election petition. Sub-section (5) of Section 86 permits the High Court to allow particulars of any corrupt practice alleged in the election petition to be amended or amplified in such manner that may in its opinion be necessary for ensuring a fair and effective trial of the election petition. However, the High Court shall not allow any amendment of the petition which shall have the effect of introducing particulars of a corrupt practice not previously alleged in the election petition. While sub-section (6) emphasises the need to have day to day trial of an election petition, sub-section (7) says that every election petition shall be tried as expeditiously as possible and an endeavour shall be made to conclude the trial within six months from the date on which the election petition is presented to the High Court for trial.

16.3. Section 87 lays down the procedure to be followed. Sub-section (1) says that every election petition shall be tried by the High Court, as nearly as may be, in accordance with the procedure applicable under CPC to the trial of suits. As per sub-section (2), provisions of Indian Evidence Act, 1872 shall be deemed to apply in all respects to the trial of an election petition.

16.4. In terms of Section 98, at the conclusion of the trial of an election petition the High Court shall make an order dismissing the election petition; or declaring the election of all or any of the returned candidates to be void; or declaring the election of all or any of the returned candidates to be void and the petitioner or any other candidate to have been duly elected.

16.5. Grounds for declaring election to be void are laid down in Section 100. Sub-section (1) is subject to provisions of sub-section (2) and it says that if the High Court is of opinion - (a) that on the date of his election a returned candidate was not qualified, or was disqualified to be chosen to fill the seat under the Constitution or the 1951 Act or Government of Union Territories Act, 1963; or (b) that any corrupt practice has been committed by a returned candidate or his election agent or by any other person with the consent of a returned candidate or his election agent; or (c) that any nomination has been improperly rejected; or (d) that the result of the election insofar as it concerns a returned candidate has been materially affected (i) by the improper acceptance of any nomination, or (ii) by any corrupt practice committed in the interest of the returned candidate by an agent other than his election agent, or (iii) by the improper reception, refusal or rejection of any vote or the reception of any vote which is void, or (iv) by any non-compliance with the provisions of the Constitution or of the 1951 Act or of any rules or orders made under the 1951 Act, the High Court shall declare the election of the returned candidate to be void. Sub-section (2) says that if in the opinion of the High Court, a returned candidate has been guilty by an agent other than his election agent of any corrupt practice but the High Court is satisfied that no such corrupt practice was committed at the election by the candidate or his election agent and every such corrupt practice was committed contrary to the orders and without the consent of the candidate or his election agent; that the candidate and his election agent took all reasonable means for preventing the commission of corrupt practices at the election; and that in all other respects the election was free from any corrupt practice on the part of the candidate or any of his agents, then the High Court may decide that the election of the returned candidate is not void.

17. In Azar Hussain v. Rajiv Gandhi 1986 (Supp) SCC 315, the election petition was dismissed by the High Court on the ground that it did not comply with the mandatory requirement to furnish material facts and particulars enjoined by Section 83 of the 1951 Act and that it did not disclose a cause of action. Against such dismissal, the election petitioner appealed to the Supreme Court under Section 116A of the 1951 Act. In the above context, Supreme Court observed that there is no dispute that CPC applies to trial of an election petition by virtue of Section 87 of the 1951 Act. The fact that Section 83 does not find place in Section 86 does not mean that powers under CPC cannot be exercised. Thus, according to the Supreme Court there is no escape from the conclusion that an election petition can be summarily dismissed if it does not furnish cause of action in exercise of the powers under the CPC. Consequently, appropriate orders in exercise of powers under CPC can be passed if the mandatory requirements enjoined by Section 83 of the 1951 Act to incorporate the material facts in the election petition are not complied with. Thereafter, Supreme Court held that omission of a single material fact would lead to an incomplete cause of action and that an election petition without the material facts relating to a corrupt practice is not an election petition at all. All the primary facts which must be proved by a party to establish a cause of action or his defence or material facts in the context of a charge of corrupt practice would mean that the basic facts which constitute the ingredients of the particular corrupt practice alleged by the petitioner must be satisfied in order to succeed on the charge. It has been clarified that in the context of an election petition, a particular fact is material or not and as such is required to be pleaded is dependent on the nature of the charge levelled and the circumstances of the case. However, all the facts which are essential to clothe the petition with complete cause of action must be pleaded and failure to plead even a single material fact would amount to disobedience of the mandate of Section 83(1)(a). An election petition, therefore, can be and must be dismissed if it suffers from any such vice.

17.1. After holding so, Supreme Court further observed that courts in exercise of powers under CPC can also treat any point going to the root of the matter such as one pertaining to jurisdiction or maintainability as a preliminary point and can dismiss a suit without proceeding to record evidence and hear elaborate arguments in the context of such evidence, if the court is satisfied that the action would terminate in view of the merits of the preliminary point of objection. In that context, Supreme Court held that since the court has the power to act at the threshold, such a power must be exercised at the threshold itself, in case the court is satisfied that it is a fit case for the exercise of such power and that exercise of such power is warranted under the relevant provisions of law.

18. This position was reiterated by the Supreme Court in Ram Sukh v. Dinesh Aggarwal (2009) 10 SCC 541. Adverting to Section 83, Supreme Court held that requirement of disclosure of material facts and full particulars as stipulated in Section 83 is mandatory. Bestowing attention on Section 86, Supreme Court held that where an election petition does not comply with the provisions of Sections 81, 82 and 117 of the 1951 Act, the High Court should dismiss the election petition. Thereafter, Supreme Court explained the real object and purport of the expression 'material facts' particularly with reference to election law. It has been held as follows:

"15. At this juncture, in order to appreciate the real object and purport of the phrase "material facts", particularly with reference to election law, it would be appropriate to notice the distinction between the phrases "material facts" as appearing in clause (a) and "particulars" as appearing in clause (b) of sub-section (1) of Section 83. As stated above, "material facts" are primary or basic facts which have to be pleaded by the petitioner to prove his cause of action and by the defendant to prove his defence. "Particulars", on the other hand, are details in support of the material facts, pleaded by the parties. They amplify, refine and embellish material facts by giving distinctive touch to the basic contours of a picture already drawn so as to make it full, more clear and more informative. Unlike "material facts" which provide the basic foundation on which the entire edifice of the election petition is built, "particulars" are to be stated to ensure that the opposite party is not taken by surprise."

18.1. Distinguishing between material facts and particulars and their requirement in an election petition, Supreme Court referring to its earlier decision in Virender Nath Gautam v. Satpal Singh (2007) 3 SCC 617 observed that there is a distinction between facta probanda i.e., the facts required to be proved which are material facts and facta probantia i.e., facts by means of which those are proved which are particulars or evidence. Pleadings must contain facta probanda and not facta probantia. The material facts on which the party relies for his claim are called facta probanda and those must be stated in the pleadings. But the facts by means of which facta probanda are proved, those are in the nature of facta probantia which need not be set out in the pleadings.

18.2. Thereafter, adverting to Section 87 of the 1951 Act, Supreme Court held that provisions of CPC apply to the trial of election petitions. Therefore, in the absence of anything to the contrary in the 1951 Act, a court trying an election petition can act in exercise of its power under the CPC including Order VII Rule 6 or Order VII Rule 11; the object being to ensure that meaningless litigation which is otherwise bound to prove abortive, should not be permitted to occupy the judicial time of the courts. If that is so in matters pertaining to ordinary civil litigation, it must apply with greater vigour in election matters.

18.3. While concluding, Supreme Court reiterated that when a challenge is made under Section 100(1)(d)(iv) of the 1951 Act, it is necessary for the election petitioner to aver specifically in what manner the result of the election insofar as it concerned the returned candidate, was materially affected due to the omission on the part of the Returning Officer.

19. Supreme Court in Mayar (ELK,) Limited (supra) held that the trial court can exercise its powers under Order VII Rule 11 of CPC at any stage of the suit i.e., before conclusion of the trial.

20. Following the above proposition, Supreme Court in R.K. Roja v, U.S. Rayudu (2016) 14 SCC 275 clarified that until the court disposes of an application under Order VII Rule 11 of CPC, the court cannot proceed with the trial. However, it may be noted that in that case the application under Order VII Rule 11 of CPC was filed within 90 days after receipt of the summons. While declaring the above proposition, Supreme Court however heard the application under Order VII Rule 11 of CPC and in the facts of that case found that there was no ground to reject the election petition. Accordingly, the application filed under Order VII Rule 11 of CPC was rejected.

21. In G.S. Iqbal v. K.M. Khader (2009) 11 SCC 398, Supreme Court observed that a mere non-compliance or breach of the Constitution or the statutory provisions by itself would not result in invalidating election of a returned candidate under Section 100(1)(d)(iv) of the 1951 Act. The sine qua non for declaring the election of the returned candidate to be void on such a ground is further proof of the fact that such breach or non-observance has resulted in materially affecting the result of the returned candidate. In other words, the election petitioner has not only to plead and prove such ground but also that the result of the election insofar as it concerned the returned candidate has been materially affected. In the facts of that case, Supreme Court noted that in the entire election petition, there was no pleading at all that the suppression of information by the returned candidate in the affidavit along with the nomination paper with regard to his first wife and dependent children from her and non-disclosure of the assets and liabilities has materially affected the result of the election.

22. However, Supreme Court sounded a note of caution in Ponnala Lakshmaiah v. Kommuri Pratap Reddy (2012) 7 SCC 788. In the facts of that case, Supreme Court observed that there is no denying the fact that election of a successful candidate is not to be lightly interfered with by the courts. Courts generally lean in favour of the returned candidate and place the onus of proof on the person challenging the end result of an electoral contest. According to the Supreme Court that approach is more in the nature of a rule of practice than a rule of law and should not be unduly stretched beyond a limit. While it is important to respect a popular verdict and the courts ought to be slow in upsetting the same, it is equally important to maintain the purity of the election process. Courts are, therefore, duty bound to examine the allegations whenever the same are raised within the framework of the statute without being unduly hyper-technical in their approach and without being oblivious of the ground realities.

Court had directed the Registry to file a report on this aspect. Registry submitted report on 12.11.2021. Report of the Registry says that as per Rule 3(1) of the rules which regulate the trial of election petitions in the High Court under the Representation of the People Act, 1951, every election petition can be filed in the office of the Registrar by the petitioner himself or by an advocate duly appointed by him. While this rule or the applicability of this rule may be questionable in view of several judgments of the Supreme Court that the election petition has to be presented by the election petitioner himself, Registry has further mentioned in the report that because of the time gap the scrutiny officer or the receiving clerk is unable to say by looking at the entire file whether the election petition was presented by the petitioner in person or through his counsel. Therefore, from the report of the Registry, this aspect would also have to be gone into in the trial if persisted by the returned candidate.

23. Thus taking an overall view of all aspects of the matter, Court is of the considered opinion that the present is not a fit case for rejection of the election petition at the threshold on the ground that it does not disclose any cause of action within the meaning of Section 83 read with Section 100(1)(d) of the 1951 Act.

24. Accordingly and in the light of the above, I.A. No. 1 of 2020 is dismissed.