SHREE NARAIN DHANUKA Vs. JAIDEV PRASAD INDORIA

JUDGEMENT

(1.) THE instant application has been filed by respondent No.1, the returned candidate, under Order 7 Rule 11 read with Order 6 Rule 2 of the Code of Civil Procedure read with Sections 83(1) (a) and 87 of the Representation of People Act, 1951 (for short, "the Act, 1951"), contending that the election petition does not contain full material facts and particulars, therefore, it does not disclose any cause of action and, thus, liable to be rejected at the threshold without holding the trial.

(2.) THE election petition has been filed by one Shree Narain Dhanuka claiming that he is a voter of Natangarh Assembly Constituency and was counting agent of Shri Hari Shanker Bhabhara, respondent No.6, who was a B.J.P. candidate. Petitioner stated that he was present during counting of the votes on 28.11.98; the margin of votes between the returned candidate and respondent No.6 Shri Bhabhara was only of 377 votes. THE difference of victory being marginal and there had been various illegalities and irregularities in counting of the votes which materially affected the result of the election; the application filed by the election agent of Shri Bhabhara for recounting of votes was wrongly rejected by the Returning Officer, therefore, the election petition should be allowed and directions should be issued for inspection and recounting of votes. THE instant application has been filed by the returned candidate submitting that for lack of material facts and specific allegations, petition does not disclose any cause of action and thus, the same is liable to be rejected at this stage without proceeding for trial.

(3.) IN Udhav Singh vs. Madhav Rao Scindia (7), the Apex Court observed that the word "material" shows that the facts necessary to formulate cause of action must be stated. Happening of a fact as well as fact itself is material. Omission of a single material fact leads to an incomplete cause of action and the statement of claim becomes bad. The particulars present full 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. The Hon'ble Supreme Court explained the distinction between the grounds, material facts and material particulars by observing as under:- "IN short, all those facts which are essential to clothe the petitioner with a complete cause of action are `material facts' which must be pleaded, and failure to plead even a single material fact amounts to disobedience of the mandate of Section 83(1) (a). `Particulars' on the other hand, are `the details of the case set up by the party.' `Material particulars' within contemplation of Clause (b) of Section 83 (1) would therefore mean all the details which are necessary to amplify, refine and embellish, the material facts already pleaded in the petition in compliance with the requirement of Clause (a). `Particulars' serve the purpose of finishing touches to the basic contours of a picture already drawn, to make it full, more detailed and more informative".