Mohd. Nissar S/O Mohd. Ibrahim Pawar Vs. Shivaji S/O Bhanudas Kardile - Court Judgment

V.R. Kingaonkar, J.

1. This is an Election Petition seeking declaration that election of Respondent to Maharashtra Legislative Assembly from 230 - Nagar Newasa Constituency is void and further to set aside the said election. Interim application (C.A. No. 4/2005) is moved by Respondent for dismissal of the Election Petition in limine as provided Under Section 81, 82, 117 and 86 of the Representation of People Act read with Order VI Rule 16 and Order VII Rule 11 of the C.P.C., 1976.

2. The petitioner claims to be voter of 230 Nagar Newasa Constituency. He claims to be a social worker and founder member of private organisation called 'Muslim Vikas Parishad'. The motto of the organisation is said to be to make endeavour for progress, upliftment and development of the Muslim community in India.

3. The Election programme for the Maharashtra Legislative Assembly elections from 230 Nagar Newasa Constituency was declared and published on 15th September, 2004. The last date of filing of nomination papers was 22nd September, 2004. The scrutiny of nomination papers was scheduled on 23rd September 2004, the voting was to take place on 13th October, 2004. The result of election was to be declared on 16th October, 2004. The Respondent filed his nomination paper as a candidate of the said constituency as an official candidate nominated by the Nationalist Congress Party (N.C.P.). He was declared as elected candidate as a result of the said election.

4. The petitioner's case, in short, is that he came across a pamphlet captioned '...' (humble appeal) purported to be published by a Member of Parliament, namely Shri Tukaram Gadakh (Patil). The pamphlet showed name of publisher as Ghansham Gholap. The printer's name is indicated as Neat Prints, Nagar and 2500 copies were printed as shown on the pamphlet itself. The pamphlet makes fervent appeal to voters from Muslim community, for and on behalf of the Respondent and the N.C.P. as such, on the ground of religion for furtherance of the prospects of election of the Respondent. That prejudicially affected election prospects of other candidates. The pamphlet also promotes ill-feelings and hatred between two different classes of citizens on the ground of religion. The pamphlet is said to have been published with a view to make appeal to members of Muslim community for obtaining their votes on the ground of religion, whereby the Respondent adopted corrupt practice in the said election. His election, therefore, deserves to be declared void.

5. The pleadings of the petitioner would show that he reproduced following excerpts from the pamphlet which he alleges to be offending and indicative of corrupt practices adopted by the Respondent.

9. That, it is mentioned in the said brochure that, 'Dear Brothers, in those times there was congress and so the Islamic Community was alive and even now in this country Islam is secure because of Congress'. It is further submitted in the brochure that, Today we have to save someone, instead we have to save Khuda himself.

10. The brochure further appealed to the Muslim Community that 'Brothers and Sisters, totally remove fear from your heart and teach a lesson to these ill omen people on the 13th by giving valuable vote to Congress'. It was also contained in the brochure that, 'On the eve of Ramzan we do one good thing so as to get solace.

6. In his application, the Respondent alleges that the petition does not show any cause of action. His assertion is that the Election Petition does not include any averment that the appeal was made in the name of religion of the Respondent nor there is any averment in the petition that the appeal was made by the Respondent or his agent to the voters for persuading them to cast votes in his favour on the ground of 'His Religion'. His assertion further is that there is no specific averment in the Election Petition regarding corrupt practice which would come within the ambit of Section 123(3)(a) or Section 123(3A) of the Representation of People Act. There is non-compliance of Section 83 and 86 of the said Act. The petitioner failed to plead and furnish material facts in the context of the said pamphlet shown in Schedule 'A'. No particular date of publication is given nor identity of the persons who distributed the pamphlet is revealed in the petition. The petition also does not show as to when the copies of the pamphlets were distributed and who had received them. The petitioner further does not show that the pamphlet was published by the Respondent or with his consent by his election agent. Thus, for want of material facts, there is no substratum to infer any cause of action. The Respondent is unable to answer the petition in absence of the material facts.

7. The Respondent further alleges that though, it is vaguely asserted that his agent solicited votes of members of the Muslim community for him yet, identity of such agent is not disclosed nor the manner in which the votes were solicited by so-called agent is indicated. The Respondent categorically denied that such pamphlet was published by him or with his knowledge or consent by anyone. The Respondent further denied that the contents of the pamphlet are aimed at promoting feeling of enmity and hatred between different classes of citizens of India, on the ground of religion, for furtherance of the prospects of his election and thereby it prejudicially affected the election of other candidates. The Respondent alleges that the copy of affidavit furnished to him and other documents are in total disregard to the provisions of Section 81(3) read with Section 83(1) of the Representation of People Act. It is alleged by the Respondent that the omission to write name of the attesting officer in the copy furnished to him is a defect which created confusion in his mind and that it is a material defect for which the petition is liable to be dismissed in limine. Consequently, he urged to dismiss the petition.

8. The material grounds, on which the dismissal of petition is sought, may be recapitulated thus:

(a) That the petitioner has not pleaded and furnished material facts which are germane to maintainability of the petition.

(b) The pamphlet, even taken as it is, does not indicate any appeal made by the Respondent as a candidate or by his agent on ground of 'His Religion' to refrain the voters from casting votes to other candidates on the ground of religion.

(c) The pamphlet in question was not published by the Respondent or his agent or with his consent and it does not promote hatred or enmity between different classes of citizens of India and is not therefore, evidence of promoting feeling of enmity between different classes of citizens in India, as enumerated in Section 123(3A) of the Representation of People Act.

(d) The copy of the petition is not duly supported by affidavit sworn in legal manner and there is material defect which is fatal for maintainability of the petition.

9. Mr. Sapkal, learned advocate for the Respondent would submit that the pleadings of the petition are quite vague and insufficient. He contended that the omission to furnish duly attested copy of the petition is fatal and the defect is not curable. He further contended that the omission in the petition to plead material facts is explicit from the averments made in the petition. He argued that the petition is totally defective inasmuch as information regarding the period in which the pamphlet was published, distributed and created so-called hatred between the different classes of citizens of India is absent. He would further submit that mere filing of a copy of the said pamphlet cannot be treated as due compliance of furnishing material facts. He would submit that there is inherent defect in the petition due to the omission to plead material facts. He argued that the pamphlet, even if it is taken as it is, would not disclose any material to prima facie indicate the Respondent's indulgence in any corrupt practice within the meaning of Section 123 of the said Act. He would submit that there is no cause of action spelt out from the petition, nay, it does not exist at all. Per contra, learned advocate Mr. Kanade A.G. would submit that minor defect like furnishing of copy which does not show name of the attesting Officer is a curable defect and the same is later on cured. He would submit that all the material facts are pleaded though, some better particulars are not given. He contended that the petitioner is not required to plead evidence. He argued that the petitioner is at liberty to give better particulars at subsequent stage and to prove the facts which would demonstrate use of corrupt practices by the returned candidate - Respondent. According to Mr. Kanade, the objections raised in the interim application are unfounded and the Election Petition may not be dismissed in limine.

10. The relevant excerpt of the pamphlet which is allegedly published by Member of Parliament - Shri Tukaram Gadakh, are stated in the affidavit form No. 25. The affidavit is duly verified by the Officer authorised to administer oath. The copy of said affidavit was furnished to the Respondent. The copy (P-24) does not show name of the said Officer, his designation, name of person who identified the petitioner and other details below the endorsement of affirmation. The copy also does not show the source of information. These are the preliminary objections raised by the Respondent. In Narendra Bhikahi Darade v. Kalyanrao Jaywantrao Patil and Ors. 2000 (4) All. M.R. 151, a Single Bench of this Court held that such defect in the copy of affidavit of the petition supplied by the Respondent would be fatal and, therefore, the Election Petition is liable to be dismissed. The learned Single Judge relied on the judgment of the Apex Court in Dr. (Smt.) Shipra and Ors. v. Shantilal Khoiwal and Ors. A.I.R. 1996 SC 1694. In the case of Dr. (Smt.) Shipra and others v. Shantilal Khoiwal and Ors. (supra), the Apex Court approved the decision in Purushottam v. Returning Officer : AIR1992Bom227 . The High Court had held that the concept of substantial compliance cannot be extended to over look serious or vital mistakes which shed the character of a true copy so that the copy furnished to the returned candidate cannot be said to be a true copy. There are two other judgments Anil Umrao Gote v. Rajwardhan Raghujirao Kadambonde alias Rajubaba 1996 A.I.H.C. 2857 and Chhagan Bhujbal v. Balaram Dagdu Nandgaonkar and Ors. 1996 A.I.H.C. 4143 following the same line. There are some other judgments also wherein view is expressed to the effect that omission of signature or name of the associate of the High Court before whom verification and affirmation is made in the copy of Election Petition and defective copy of affidavit is a fatal one and petition is liable to be dismissed. Such view is expressed in Anant Waman Tare v. Abdul Rehman Abdul Guffur Antulay and Ors. 1997 (1) All. M.R. 116 and Baban Yadav v. Shri Abdul Kadir and Ors. : AIR1998Bom60 .

11. So far as alleged defect is concerned, it appears, no doubt, that copy of the affidavit in form No. 25 as furnished to the Respondent is not true copy in the sense that the name of the attesting Officer and the nature of the endorsement at the bottom of the affirmation is not shown in the copy. The question is whether the Respondent is prejudiced due to such technical defect appearing from the copy of the said affidavit. The Respondent could not pin-point as to how his defence was impaired due to furnishing of the copy without endorsement of the attesting Officer and the name or other details pertaining to the due verification before the authorised attesting Officer of the High Court.

12. The controversy arising out of such a technical defect is set at rest by the Apex Court in Chandrakant Uttam Chodankar v. Dayanand Rayu Mandrakar and Ors. A.I.R. 2005 S.C.W. 19. The Apex Court held that defective verification and non-filing of requisite number of copies of the Election Petition are not fatal defects. It is held that expression 'shall' used in Section 83(1)(c) of the Representation of the People Act, does not make it a mandatory provision. The relevant observations of the Apex Court may be usefully quoted as below:

In this case it is not necessary for us to go into the question as to whether Section 83 is imperative in character or not inasmuch it is a settled law that even where the expression 'shall' is used, the same may not be held to be mandatory. Even a mandatory provision having regard to the text and context of the statute may not call for strict construction.....The tests suggested in Murarka Radhey Shyam case are sound tests and are now well settled. We agree with the same and need not repeat those tests. Considered in this background, we are of the opinion that the alleged defect in the true copy of the affidavit in the present case did not attract the provisions of Section 86(1) of the Act for alleged non-compliance with the last part of Section 81(3) of the Act and that there had been substantial compliance with the requirements of Section 81(3) of the Act in supplying 'true copy' of the affidavit to the appellant by the respondent.

The small defect in furnishing copy of the affidavit annexed with the petition, which did not indicate the nature of endorsement of the attesting officer, name of the concerned officer and other details, cannot be treated as fatal. For, the Respondent was not prejudiced by the said defect nor compliance with Section 83(1)(c) of the Representation of People Act can be regarded as mandatory. The first technical objection of the Respondent, therefore, must be negatived.

13. The main thrust of the Respondent is on the omission of the petitioner to plead material facts and further total absence of cause of action available to the petitioner. Before I proceed to consider whether the petitioner has pleaded the material facts or not, I would first examine whether the pamphlet produced by the petitioner is enough to reach conclusion, even prima facie, that the Respondent indulged in corrupt practices within the meaning of Section 123 of the Representation of People Act. The Respondent is not a member of Muslim community. The pamphlet in question does not show that the appeal was made to members of Muslim community to cast their votes in favour of the Respondent. The tenor of the pamphlet would show that an appeal was made to the members of Muslim community to support the N.C.P. which always heard their grievances. Of-course, such appeal is also not properly worded. For example, the last paragraph of the pamphlet may be reproduced to make the pointclear:

----------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------(Translation of Hindi portion)

Sisters and brothers, completely remove the fear from your hearts and on the 13th day teach those ugly people a full lesson and give your valuable vote to congress party. Brothers, remember the last year's massacre in Gujarath. Remember the Bomb explosions followed by mass killings of our Muslim brothers in Mumbai. In the Best Bakery our people were torched just like breads are baked. If You forget these things, I feel you are not pursuing the matter in a correct way. Prior to Ramzan, let us do some good work so that our soul will get solace. Otherwise remember the couplet for a while of the dancer in Lucknow, she says,

When the hearts of the people are broken, they come to me in that situation.

But if my heart is broken where should I go?' Sir, may I sing a song or Gazal for you.

Take this thing seriously because to narrate Your true sorrows, doors of only congress are always open for you.

And other doors are merely a show and nothing else.

Regards,

Yours only

Kha. Shri Tukaramji Gadakh,

(Member of Parliament)

14. Nobody will deny that the above appeal is made not for particular candidate as such but it was to seek votes for Congress as a party. Of-course, who is said to be '----' (dancer) is rendered in obscurity and it is not necessary to ferret out identity of the so-called dancer of which reference is made in the pamphlet in question. I have carefully read the pamphlet in question (Schedule B-P-4) have not come across any statement which purports to show that the Respondent made any appeal to the voters to cast their votes on ground of 'his religion' or not to tender their votes to other candidates who are not of his religion. There is oblique reference to the misdeeds of other parties in relation to community of Muslim and an attempt is made to show that only the N.C.P. is the real sympathizer and saviour of the Muslims. And it always tried to help them. For the purpose of Section 123(3)(a) of the Representation of People Act, 1951, mere appeal to a particular class of voters on ground of religion, race, caste, community or language by itself is not enough to infer corrupt practice. The appeal must be potent enough to say that it was made by the candidate or his agent or by any other person with his consent to vote for him or refrain from voting any person on the ground of hisreligion, race, caste, community or language.

15. Section 123(3) may be reproduced for ready reference:

123. Corrupt practices. The following shall be deemed to be corrupt practices for the purposes of this Act:

(1) x x x x(2) x x x x(3) The appeal by a candidate or his agent or by any other person with the consent of a candidate or his election agent to vote or refrain from voting for any person on the ground of his religion, race, caste, community or language or the use of, or appeal to religious symbols or the use of, or appeal to, national symbols, such as the national flag or the national emblem, for the furtherance of the prospects of the election of that candidate or for prejudicially affecting the election of any candidate.

16. A plain reading of Sub-clause (3) would make it manifest that the appeal by a candidate must be to vote or refrain from voting any person on the ground of his religion, race, caste, community or language etc. In the present case, the Respondent is not a member of Muslim community. Obviously, he could not have made appeal to cast vote in his favour on the ground of 'his religion' or 'being member of Muslim community' nor did he do so. The pamphlet does not show that he made appeal to refrain members of Muslim community from voting for any other person on the ground of such candidate being of other religion or community.

17. The next allegation is that the Respondent purposefully got printed 'Chandtara' (1/4th moon and star) on the top of the pamphlet which is also used as National emblem or on the National flag of alien country -Pakistan. The picture 'Chandtara' (1/4th moon and star) is not part of the National symbol or National flag or National emblem of India. It is not proper to say that it is exclusive National emblem of alien country - Pakistan. I do not see any substance in the contention that due to printing of 'Chandtara', the pamphlet is impregnated with any offending material within the meaning of Sub-clause (3) of Section 123 of the Act. There is no escape from the conclusion that even if the pamphlet is said to have been published by Member of Parliament - Shri Tukaram Gadakh, with consent of the Respondent, then also it cannot be regarded as his indulgence in corrupt practice. By no stretch of imagination it can be out rightly said that mere printing/publication of the said pamphlet cannot give any cause of action to the petitioner for challenging the election of the Respondent.

18. In the above context, it would be useful to refer to Harmohinder Singh Pradhan v. Ranjeet Singh Talwandi and Ors. 2005 (5) All. M.R. 581. The Apex Court had an occasion to consider allegations wherein an appeal was made on the ground of religion. The Apex Court observed:

Thus, for soliciting votes for a candidate, the appeal prohibited is that which is made on the ground of religion of the candidate for whom the votes are sought : and when the appeal is to refrain from voting for any candidate, the prohibition is against an appeal on the ground of the religion of that other candidate. The first is a positive appeal and the second a negative appeal. Sub-section (3) clearly indicates the particular religion on the basis of which an appeal to vote or refrain from voting any person is prohibited under Sub-section (3).

In the present case the appeal forming the grave men of the charge of corrupt practice do not carry in it any element of an appeal to vote for the Respondent on the ground of 'his religion' nor the contents of the pamphlet in question, even in remotest manner, indicate that an appeal was made to the members of Muslim community to refrain from voting in favour of any other candidate on the ground of 'his religion'.

Needless to say, neither there is positive appeal in favour of the Respondent to vote for him on the ground of his religion or being member of Muslim community, which of-course could not have been made, nor there is any negative appeal against the opponents of the Respondent. Under these circumstances, it must be said that the pamphlet in question does not furnish substratum to infer corrupt practice within the meaning of Sub-clause (3) of Section 123 of theRepresentation of People Act.

19. Mr. Kanade A.G., learned advocate would submit that the text of the pamphlet purports to show an attempt to promote feelings of enmity between two classes of the citizens of India on the ground of religion. He would submit that necessary evidence can be adduced in support of such contention. He argued that the election petition cannot be dismissed at the threshold when the prima facie evidence is available in the form of the contents of the pamphlet itself. Mr. Kanade, would submit that the Respondent's corrupt practice is explicit from recitals of the pamphlet, which would fall within the ambit of Sub-clause (3-A) of Section 123 of the Representation of People Act, 1951. He would submit that the petitioner cannot be expected to furnish proof of alleged facts at the preliminary stage.

20. I have given my anxious consideration to submissions of Mr. Kanade. The proof regarding due publication of the pamphlet by the Respondent or his agent or anyone by his consent is absent. Though it is not expected that such proof should be furnished by the petitioner at preliminary stage, yet, there must be some prima facie material to indicate the nexus between the offending publication and the elected candidate whose election is under challenge. For the sake of argument, even if it be assumed that the pamphlet in question was published by Shri Tukaram Gadakh, Member of Parliament, with consent of the Respondent then also reading of the same in its entirety do not show that there is any attempt to promote enmity or hatred between two classes of citizens of India. There are some innuendoes here and there. The oblique references are in relation to some other parties or their organisations. There is no statement in the pamphlet to show that a particular class of some other religion was intended to be treated as enemy of the Muslim community. That cannot be the purport of the pamphlet because so-called publisher himself is a non-Muslim and the names of candidates shown on back side of the pamphlet would also show that they are all non-Muslims by religion. I mean to say the contents of the pamphlet, even if taken as it is, do not show any particular attempt to promote hatred between two classes of citizens on ground of religion. Obviously, the said pamphlet by itself does not furnish even prima facie proof to attribute charge of corrupt practice to the Respondent within the meaning of Sub-clause (3-A) of Section 123 of the said Act.

21. Mr. Sapkal, would submit that the petition is bad in the eye of law inasmuch as material facts are not furnished. He pointed out that the material fact pertaining to period of publication of the pamphlet is not pleaded. So, it is difficult to say that the pamphlet was published and distributed during the period of election. The pamphlet does not bear any date. The petitioner has not disclosed source of information in the affidavit. One does not know who informed him about printing of the pamphlet and how he came across the same. The petitioner failed to plead that the pamphlet was published after commencement of the election process and before it was over. He also failed to state in the pleadings as to who was the agent of the Respondent and whether Respondent gave authority to the publisher of the pamphlet for printing of the same. He failed to demonstrate the manner in which the said pamphlet was distributed. The pamphlet itself shows that only 2500 copies thereof were printed. The petitioner did not spell out names of few persons who had received the pamphlet during the distribution process and particularly after declaration of the election for the said constituency. He also failed to specify the pertinacity of the said pamphlet to cause promotion of enmity between the two classes of citizens.

22. Mr. Sapkal, placed reliance on Azhar Hussain v. Rajiv Gandhi : [1986]2SCR782 . In the given case, there were allegations of corrupt practice as a result of distribution of pamphlet relating to personal character of the candidate. In the context, the Apex Court noticed that there was a glaring omission to mention the names of the workers said to have been employed by the candidate or his agents who had allegedly painted the slogans. The Apex Court observed that there was no averment to show that the publication was made with the knowledge or consent of the returned candidate. It was also observed that the High Court concluded, on facts of the given case, that it was not pleaded as to who has distributed the pamphlet, when they were distributed, where they were distributed and whom they were distributed, in whose presence they were distributed etc. The pleadings were found to be ominously silent on those aspects. In view of such defects, the Apex Court held:

38. In view of the doctrine laid down in Nihal Singh's case : (1970)3SCC239 (supra) as early as in 1970, the High Court was perfectly justified in taking the view that no cause of action was made out. For, in the absence of material particulars as to who had printed, published or circulated the pamphlet, when where and how it was circulated and which facts went to indicate the respondent's consent to such distribution, the pleading would not disclose a cause of action. There would be nothing for the respondent to answer and the matter would fall within the doctrine laid down in Nihal Singh's case (supra). The learned Counsel for theappellant is unable to show how the Court has committed any error in reaching this conclusion.

39. Thus there is no substance in the contentions urged by the learned Counsel for the appellant in order to assail the judgment of the High Court in the context of the seven charges of alleged corrupt practices which the learned Counsel wanted to call into aidin support of his submission.

23. Herein too there are sweeping averments in the petition regarding alleged indulgence of the Respondent in corrupt practice by printing the pamphlet (Schedule B). There is no averment in the petition regarding the period of publication, the manner of distribution of the pamphlet, the names of agents who distributed the same or names of the persons who had received the same. Suppose the pamphlets are really printed and not distributed then also it will be of no avail to infer any corrupt practice committed by the Respondent. Suppose it is printed and distributed to members of some other communities then also it will be of no avail. Suppose it is printed and is distributed somewhere after the elections then also it will be of no avail to infer any corrupt practice. Suppose it is printed and distributed outside the constituency then also it will be of no avail. There are multiple possibilities, including the possibility that such pamphlet is printed by someone so as to make it available to the petitioner with a view to attempt misuse thereof. Nobody can deny that material facts must be pleaded by the petitioner before the petition can be considered worth subject matter of the trial.

24. Mr. Kanade, seeks to rely on Sardar Harcharan Singh Brar v. Sukh Darshan Singh and Ors. A.I.R. 2004 S.C.W. 6205. The Apex Court held that where averments in the election petition were found to be deficient in material particulars then its dismissal at the threshold was not proper. So also in Harkirat Singh v. Amarinder Singh A.I.R. 2006 S.C.W. 4, the Apex Court succinctly distinguished between expressions 'material facts' and material particulars'. The Apex Court held that the phrase 'material facts' is inclusive of those facts upon which the party relies for his claim or defence. The material facts are primary or basic facts which must be pleaded by a plaintiff or defendant in support of the case set up by him either to prove his cause of action or defence. The particulars, on the other hand, are details in support of the material facts pleaded by the party. The material particulars only amplify, refine and embellish the 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. It is held by the Apex Court that rejection of the election petition by going into correctness of the material facts was improper.

25. The fact situation in the present case is quite different. The basic facts are not pleaded by the petitioner. The Apex Court in Kamalnath v. Sudesh Verma : [2002]1SCR63 , held that vague assertion that helicopter was used for specified number of flying hours and mentioning standard charges for flying hours would not constitute material fact that candidate has incurred expenses in excess of permissible ceiling. It was also held that for want of material facts, the election petition was not maintainable. The requirement to plead material facts need not be over emphasised. The need to plead material facts is implicit in the requirement of law, particularly, Under Section 83 of the Representation of People Act. Section 83(1) makes it mandatory for the petitioner to make a concise statement of the material facts on which he relies. It is also mandatory for the petitioner to set out full particulars of the corrupt practice which he alleges. He is required to make full statement, as far as possible, including names of the parties alleged to have committed such practice, indicate the date and place of the commission of such practice. The Apex Court in Jaipal Singh v. Smt. Sumitra Mahajan and Anr. : AIR2004SC2066 , held that basic facts pertaining to the claim of the petitioner are the material facts. The observations may be usefully quoted as follows:

9. As to what is the material fact has to be decided in the present case, in the context of the election petition under the said Act. An election petition is a matter of statutory right. In the petition, the key issue was whether the appellant held an office of profit on the date of scrutiny. For that purpose, appellant ought to have stated that on 13.3.2002 he had requested for waiver of the notice period; that the appointing authority had received the notice on the specified date and that his request for waiver stood granted on the date of scrutiny and he ceased to be a Government servant. These were the material facts which the appellant should have pleaded so that the returned candidate would not be taken by surprise. They were material facts within his knowledge and ought to have been pleaded in the election petition. Lastly, even the letter of the appellant seeking the waiver of the notice period did not form part of the election petition. Hence, the High Court was right in dismissing the election petition for want of material facts.

26. The litmus test is to see whether the petition as it is can be decided in favour of the petitioner on the basis of the facts which are pleaded and as they are. The Court cannot simply assume that the pamphlets were printed during the period of election of the returned candidate i.e. the Respondent. The Court cannot take it for granted that the pamphlets were distributed with the consent of the Respondent and in fact, the circulation was intended to promote enmity between the two classes of citizens. The petition cannot be decided merely on surmises. I am of the opinion that the petition is destitute of several material facts. Consequently, the Election Petition is not maintainable at all.

27. To conclude, it will have to be said that there is no cause of action for filing of the Election Petition. The petition does not disclose various material facts. The alleged charges of corrupt practices are based only on sweeping averments. The so-called pamphlet by itself is totally insufficient to furnish any tangible evidence of alleged corrupt practice by or at behest of the Respondent. In this view of the matter, the petition deserves to be dismissed at the threshold.

28. In the result, the Election Petition is dismissed with costs which are quantified at Rs.5,000/- (Rupees five thousand). C.A. disposed of.