KAMAKHYA PRASAD Vs. DIGENDRA PURKAYASTHA

JUDGEMENT

(1.) This is a petition by respondent No. 1 the returned candidate. His contention is that the averments made in Paras 10 to 14 and 16 to 28 of the election petition are devoid of material facts and particulars and so they cannot form the basis of any triable issue. It has, therefore, been prayed to strike off these paragraphs.

(2.) Inspiration to file this petition has been drawn mainly from Azhar Hussain v. Rajiv Gandhi, AIR 1986 SC 1253, wherein it has been held that an election petition can be and must be dismissed under the provisions of the Civil P.C. if the mandatory requirements enjoined by S.83 of the Representation of the People Act, 1951 (for short the Act), to incorporate the material facts and particular relating to alleged corrupt practice are not complied with. Though Azhar (sic) there is no dispute that the ratio would apply to those averments in the election petition which seek to make out a case for setting aside an election on a ground other than corrupt practice. It has been observed in Azhar Hussain that as the Civil P.C. is applicable to the trial of an election petition vide S.87 of the Act, the Court can act in exercise of the powers of the Code including O.6, R.16 and O.7, R.11(a). It has, therefore, been held that the fact that S.83 of the Act does not find place in S.86 of the Act, which has dealt with dismissal of an election petition, does not mean that power under the Civil P.C. cannot be exercised. According to this decision, an election petition can be summarily dismissed in exercise of the power under the Civil P.C., if it does not furnish cause of action. It is further stated that the omission of a single material fact would lead to an incomplete cause of action and a petition without material fact would not be an election petition at all. Reference may also be made to Bhagawati Prasad v. Rajeev Gandhi, AIR 1986 SC 1534, wherein it was stated that it is settled law that in an election petition pleadings have to be precise, specific and unambiguous and if the election petition does not disclose any cause of action, it is liable to be rejected in limine.

(3.) The aforesaid legal position enjoins a duty on this Court to see whether all the material facts and necessary particulars, wherever required, have been averred in the aforesaid paragraphs of the election petition or not. Before the factual aspect is looked into, let the relevant portion of S.83 of the Act dealing with contents of such a Petition be noted :-