Judgment:
ORDER
D.N. Prasad, J.
1. An application has been filed on behalf of the respondent under Sections 83(1), 86(1) and 97 of the Representation of Peoples Act, 1951 for deciding the preliminary issue about the maintainability of Election Petition and praying therein to dismiss the Election Petition on account of non-compliance of mandatory provision.
2. It is stated that there are vague and bald allegation as there is no material in the Election Petition which may give rise to valid cause of action. There is no attestation by the Election petitioner in the original and copy of the Election petition supplied to the Respondent No. 1 as well as there is no concise statement of material facts as required under Section 8 of the R.P. Act. There is also absence of endorsement of Notrary Public/Oath Commissioner on the copy of the affidavit accompanying the Election petition. The allegation as made in the Election petition are unnecessary, frivolous, vexatious, tainted and prejudiced as well as it is wrong to say that ballot papers of the Election petitioner belonging to another candidates were mixed with the bundle of ballot papers of respondent. There was no irregularities or illegality in counting as the Respondent No. 1 was declared by a majority votes and the counting was done in accordance with law and as the allegations made are absurd and vague and, therefore, Election petition is fit to be dismissed.
3. On the other hand, rejoinder has been filed on behalf of the petitioner claiming therein that the Election petition has been filed with concise statement of material facts as required under law and it has also been filed with full particulars. The Election petition has duly been signed and verified by the petitioner in accordance with the Code of Civil Procedure. The said Election petition has also been accompanied by an affidavit in the prescribed form in support of the allegation. It is also claimed that in respect of matter deciding preliminary objection is not to be equated with the final decision which is made after adducing the evidence by the petitioner. The objection raised by the respondent about the maintainability of the Election petition is only for the sake of objection as all the mandatory provision in relation to the filing of the Election petition have duly been followed and there is no infirmity in the Election petition. The provision of Section 81 of the R.P. Act has fully been complied with and sufficient materials as required under law has been given in the Election petition for consideration. Thus, the objection raised by the respondent about the maintainability of the petition is fit to be dismissed.
4. Mr. Ram Kishore Prasad, the learned counsel appearing on behalf of the Respondent No. 1 submitted that there is no concise statement of material facts as required under Section 83 of the R.P. Act. It is further argued that the petitioner also made an allegation of corrupt practice but no affidavit as required under law has been given to substantiate the allegation and for which this petition is fit to be dismissed summarily. It is also submitted that there is no endorsement of Notary Public/Oath Commissioner/ Advocate Oath Commissioner regarding affirmation on the copy served to the Respondent No. 1 and for which the Election petition is fit to be rejected. There is also vague allegation about counting of vote as there is no name of Presiding Officer or Polling Officer made in the Election petition. The learned counsel for the Respondent No. 1 also relied upon the cases reported in AIR 1969 SC 1201, AIR 1970 SC page 276 and AIR 1964 SC page 1929.
5. On the other hand, Mr. N.P. sharma, counsel appearing on behalf of the Election petitioner contended before me that the Election petition contains all the requirements as laid down under the Act and also contain concise statement of material facts. It is further argued that there is specific assertion by the Election petitioner in para 20 of the Election petition that it has not made any allegation of corrupt practice and so filing of affidavit as regards to corrupt practice does not arise. It is also argued that the preliminary objection raised by the respondent No. 1 is not tenable in law as the said objections are absolutely baseless, unwarranted and not according to the law. All the mandatory provision in relating to filing of the Election petitionunder the Representation of the Peoples Act have been followed and there is no infirmity in the Election petition. The preliminary objection is absolutely misconceived, which is fit to be dismissed. The counsel for the petitioner also relied upon the cases reported in 1999 (8) SCC page 198 and 1999 (3) SCC 737.
6. The petitioner filed this Election petition on the main ground that the counting of the ballot papers was not done impartially, fairly and in accordance with law and these facts has been stated in paras 12, 14 and 15 specifically. It has also been mentioned that the Returning Officer rejected the prayer for recounting made by the petitioner in his protest petition. It is true that an Election petition can be summarily dismissed if it does not furnish the cause of action in exercise of the power under the Civil Procedure Code. The relevant provisions of Section 83(1) of the Representation of the People Act, 1951 read as follows :
'83. Contents of petition--(1) 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 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) ......'
The Election petition, no doubt, is required to contain a concise statement of material facts which may constitute a cause of action. From going through the Election petition at hand, it is not possible to hold that a concise statement of material facts is not to be found in the petition. As I have already stated above that facts have been stated by the petitioner. I have also held that the petitioner specifically stated in para-20 of the petition that he has not made any allegation of corrupt practice and as such the requirement for establishing allegation of corrupt practice does not requireto be inserted in the petition at hand. The petition has duly been verified and signed by the petitioner under Solemn affirmation. Thus, the requirement for compliance of Section 83(1) of the R.P. Act for setting forth full particulars and material facts has been done. There is no allegation that the election petition was field without as many as copies thereof as there are respondents. It was submitted on behalf the Respondent No. 1 that the copy of the Election petition supplied to the Respondent No. 1 is not a true copy of the original petition, hence there is non-compliance of Section 81(3) of the Act, but sub-section 3 of Section enjoins that every election petition shall be accompanied by as many as copies thereof as there are respondents mentioned in the petition and as such, such objection raised by the learned counsel for the Respondent No. 1 has got no substance at this stage.
7. In the case of V.S. Achuthanandan v. P.J. Francis and another, 1999 (3) SCC 737, it was observe that the trial Judge did not distinguish between the 'material facts' and the 'material particulars' of allegations regarding corrupt practices as defined under Section 123 of the Act. The distinctions among the ideas of the 'grounds' in Section 81(1); of 'material facts' in Section 83(1)(a) and of 'full particulars' in Section 83(1)(b) are obvious. The provisions of Section 83(1)(a) and (b) are in the familiar pattern of Order 6, Rules 2 and 4 and Order 7 Rule 1(e), CPC, while failure to plead 'material facts' is fatal to the election petition and no amendment of the pleading is permissible to introduce such material facts after the time-limit prescribed for filing the election petition, the absence of 'material particulars' can be cured at a later stage by an appropriate amendment in terms of Order 6, Rule 17, CPC. Material facts are such primary facts which must be proved at the trial by a party to establish existence of causes of action. A reasonable cause of action means a cause of action with some chances of success when only the allegations of the pleadings are considered. So long as the claim discloses some cause of action or raises some questions fit to be decided by a Judge, the mere fact that the case is weak and not likely to succeed is no ground for striking it out. An election petition is not liable to be dismissed in limine merely because full particulars of corrupt practice alleged were not set out whether in an election petition a particular fact is a material fact or not and as such, required to be pleaded is a question which depends on the nature of the charge levelled, the ground relied upon, and in the light of the special circumstances of the case.
8. In the case of Vijay Laxmi Sadho v. Jagdish, (reported in 2001 AIR SC 223), it has further been reiterated that an election petition is liable to be dismissed in limine under Section 86(1) of the Act only if the election petition does not comply with either of the provisions of Section 81 or Section 82 or Section 107 of the Act. The requirement of filing an affidavit alongwith an election petition, in the prescribed form, in support of allegations of corrupt practice is contained in Section 83(1) of the Act. Thus, an election petition is not liable to be dismissed in limine under Section 86(1) of the Act, for alleged non-compliance with provisions of Section 83(1) of the Act or of its proviso. What other consequences, if any, may follow from an allegedly 'defective' affidavit, is 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. Defect in verification of an affidavit is curable and does not merit dismissal of an election petition in limine under Section 86(1) of the Act.
9. Thus, it is expedient in the interest of justice that the election petition at the initial stage without affording the petitioner an opportunity to prove the existence of circumstances, in my opinion, in the instant case, cannot be thrown away.
10. In view of the discussions made above, the election petition, in thepresent case, cannot be considered as not disclosing any cause of action or not containing a concise statement of material facts.
11. In the result, I do not find anymerit in this application filed by therespondent No. 1, which is accordinglydismissed.
12. Petition dismissed.