KULDEEP SINGH PATHANIA versus BIKRAM SINGH JARYAL
[2017] 1 S.C.R. 915, Supreme Court of India, 2017
Outcome: Appeal(s) allowed (Granted)
Segment: Facts
[2017] 1 S.C.R. 915 
KULDEEP SINGH PATHANIA 
v. 
BIKRAM SINGH JARYAL 
(Civil Appeal No. 4080 of201!1) 
JANUARY24, 2017 
[KURIAN JOSEPH AND A. M. KHANWILKAR, JJ.) 
The Represe111atio11 of the People Act, 1951 - ss.81, 83, 86(1) 
and IOO(J)(d)(iii) - Appel/am lost election from State Legislative 
Assembly :... Filed election petition mainly on grounds, uls. 
IOO(l){d){iii) - Petition dismissed by High Court based on the 
findings on preliminary issues thar the elecrion pelilio11 lacked in 
material facts as required under s.83(1) of the Act and as such, did 
not disclose any cause of action - 011 appeal, held: High Court 
e;.,.ed in dealing with the violatio11s alleged by the petitio11er wirh 
ri!/ere11ce to the replies furnished by the respo11de11t - It ventured 
into a11 elaborate enquiry i11 the light of pleadings i11 the replies, to 
see whether the resulr of the election was materially affected, 
appare11tly or rather mistake11ly, u/Or. XIV. r.2, CPC - The issue 
relared to an enquiry u!Or. VII, r. JI (a), CPC, a11d hence, there was 
no question of a preliminary issue being tried under u!Or. XIV. r.2(2), 
CPC - l.h1der Or. VII, r.11. the Cour/ has to take a decision looking 
al the pleadi11gs of the plaintiff 011ly a11d 11ot 011 the rebu1tal made 
by the defe11dant - Averme11ts in the electio11 petilion disclose a 
cause of actio11, therefore, petition remitted to High Court to try it 
011 meri.ts. 
Code of Cfril Procedure, 1908: 
Or. VII, r.11 a11d Or. XTV, r. 2(2) -
Difference betwee11 trial of 
preliminary issues u/Or. XIV. r.2(2) and e11quiry on preliminary issues 
u/Or. VII, r. 11 (a) - Held: E11quiry u11der Or. VII, r. JI is only on 
i11Slilutio11al defec{s - The Courr ca11 011ly see whether the plai111, 
rather pleadi11gs of the plaintiff. constitute a cause of actio11 a11d 
cannot co11sider the rebuua/ made by the defe11dant or any other 
marerials produced by the defe11da11t - I11sofar as trial 011 pre/imi11ary 
issues u!Or. XIV. r. 2(2) is co11cerned, rhough ii is 11ot a milli trial, 
the Court ca11 and has lo look illto the ell/ire pleadi11gs a11d the 
materials available 011 record, to the extent not in dispute. 
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SUPREME COURT REPORTS 
[2017] I S.C.R. 
Allowing the appeal, the Court 
HELD: 1. The High Court dealt with the violations alleged 
by the election petitioner so as to find out whether a cause of 
action is made out, but committed a grave error by considering 
the explanations offered in the replies filed by the respondents. 
The High Court ventured into an elaborate enquiry in the light of 
the pleadings in the replies, to see whether the result of the 
election was materially affected, apparently or rather mistakenly, 
under Order XIV Rule 2. [Para 5] (919-E-F] 
2.1 Order XIV Rule 2 provides for disposal of a suit on a 
preliminary issue and under sub-Rule (2) of Rule 2, if the court is 
of opinion that a case or part thereof can be disposed of, on an 
issue of law only, it may try that issue first, in case it relates to 
jurisdiction of the court or bar to entertaining the suit. After the 
1976 amendment, the scope of a preliminary issue under Order 
XIV Rule 2(2) is limited only to two areas, viz. jurisdiction of the 
court, and the bar to the suit as created by any law for the time 
being in force. The whole purpose of trial on preliminary issue is 
to save time and money. Though it is not a mini trial, the court 
can and has to look into the entire pleadings and the materials 
available on record, to the extent not in dispute. But that is not 
the situation as far as the enquiry under Order VII Rule 11 is 
concerned. That is only on institutional
defects. The court can 
only see whether the plaint, or rather the pleadings of the plaintiff, 
constitute a cause of action. If a replication is filed after the stage 
of written statement, the same also can be looked into to see 
whether there is any admission on the part of the plaintiff. In 
other words, under Order VII Ruic 11, the court has to take a 
decision looking at the pleadings of the plaintiff only and not on 
the rebuttal made by the dckndant or any other materials 
produced by the defendant. [Para 61 [919-G-H; 920-A-C] 
2.2 The High Court committed a mistake in the present 
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case, since four out of the six issues settled were taken as the 
preliminary issues. 1\vo such issues actually were relatable only 
to Order VII Ruic 11 of the Code, in the sense those issues 
pertained to the rejection at the institution stage for lack of 
nwterial facts and for not disclosing a cause of action. Merely 
H
KULDEEP SINGH PATHANIA v. BIKRAM SINGH JARYAL 
because it was a trial on preliminary issues at the stage of Order 
XIV, the scope does not change or expand. The stage at which 
such an enquiry is undertaken by the court makes no difference 
since an enquiry under Order VII Rule ll(a) of the Code can be 
takc11 HiJ at any stage. [Para 7] [920-D-Ej 
2.3 Thus, for an enquiry under Order VII Rule 11 (a), 
011ly the pleadings of the plaintiff-petitioner can he looked into 
even if it is at the stage of trial of preliminary issues under Order 
XIV Rule 2(2). But the entire pleadings on both sides can be 
looked into under Order XIV Rule 2(2) to see whether the court 
has jurisdiction and whether there is a bar for entertaining the 
suit. [Para 8] [920-F] 
2.4 In the present case, the issue related to an enquiry 
under Order VII Rule ll(a) of the Code, and hence, there was no 
question ofa preliminary issue being tried under Order XIV Rule 
2(2) of the Code. The court exercised its jurisdiction only under 
Section 83(1}(a) of the Act read with Order VII Rule ll(a) of the 
Code. Since the scope of the enquiry at that stage had to be limited 
only to the pleadings of the plaintiff, neither the written statement 
nor the averments, if any, filed by the opposite party for rejection 
under Order VII Rule ll(a) of the Code or any other pleadings of 
the respondents could be considered for that purpose. [Para 9] 
[920-G-H] 
Mayar (H.K.) Ltd. and Others v. Owners & Parties, 
Vessel M V
Fortune Express and Others (2006) 3 SCC 
100 : [2006] 1 SCR 860 - relied on. 
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Virender Nath GauU1111 v. Satpal Singh and Others 
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(2007) 3 sec 617 : [20061 10 Suppl. SCR 413 -
referred to. 
Case Law Reference 
[ 2006] 1 SCR 860 
relied on 
[2006] 10 Suppl. SCR 413 
referred to 
Para 10 
Para 11 
CIVIL APPELLATE JURISDICTION: Civil Appeal No. 4080 
of2014. 
From the Judgment and Order dated 09.01.2014 of the High 
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Court ofHimaclrnl Pradesh at Shimla in Election Petition No. 2of2013. 
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SUPREME COURT REPORTS 
(2017] I S.C.R. 
E. C. Agrawala, Anand Sharma, Advs. for the Appellant. 
B. S. Banthia, Sachin Daga, Advs. for the Respondent. 
The Judgment of the Court was delivered by 
KURIAN, J. I. Chapter llI of Part VI of The Representation 
of the People Act, 1951 (hereinafter referred to as "the Act") deals with 
trial of election petitions. Under Section 86( I) of the Act, "the High 
Court shall dismiss an election petition which does not comply with the 
provisions of Section 81 or Section 82 or Section 117". Section JOO of 
the Act provides for grounds for declaring election to be void. Section 
I 00( 1 )(d)(iii) of the Act provides that an election ofa returned candidate 
can be declared to be void ifthe High Court is of the opinion that the 
result of the election, in so far as it concerns a returned candidate, has 
been materially affected by the improper reception, refusal or rejection . 
ofany vote or the reception ofany vote which is void. Section 81 provides 
for institutional requirements including limitation and Section 117 provides 
for deposit of security for costs. Section 83, under Chapter II, deals 
with contents of an election petition. Under Section 83(1 )(a) of the Act, 
"an election petition shall contain a concise statement of material facts 
on which the petitioner relies". Under Order VII Rule I !(a) of the 
Code of Civil Procedure, 1908 (hereinafter referred to as "the Code"), a 
plaint shall be rejected where it
does not disclose a cause of action and 
under Order XIV Rule 2(2), the court may deal with the preliminary 
issue on jurisdiction of the cou11 and bar to the suit created by any Jaw in 
force. These are the provisions relevant for consideration of the present 
case. 
2. The appel !ant lost election from Bhattiyat Assembly 
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Constituency ofHimachal Pradesh Legislative Assembly held in 2012 
by a margin of 111 votes. He filed an election petition mainly on the 
grounds under Section I 00( I)( d)(iii) of the Act. Of the six issues settled, 
issues 2 to 5 were treated as preliminary issues, of which, issues 2 and 3 
related to cause of action: 
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"2) Whether the election petition is liable to be dismissed in limine 
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for lack of material facts and particulars, as alleged? 
3) Whether the election petition is not maintainable for want of 
any cause of action, as alleged?" 
3. Appellant is aggrieved since his petition has been dismissed,
KULDEEP SINGH PATHANIA v. BIKRAM SINGH JARYAL 
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[KURIAN, J.] 
based on the findings on the preliminary issues that the election petition 
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lacked in material facts as required under Section 83(1)(a) of the 1951 
Act and as such, did not disclose any cause of action. 
4. As far as the averments in the election petition are concerned, 
it is not necessary for us to refer to the same in extenso since they have 
been summarized in paragraph-27 of the impugned judgment, which reads 
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as follows: 
"27. The "violations" alleged by the petitioner during poling and 
counting of votes can be grouped in the following three categories, 
which shall be dealt with one by one:-
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Exercise of dual right of franchise by a voter and 
discrepancy between the EVM record and the record 
maintained in Form 17-A at polling station No.92-Kamla; 
II. 
Improper reception of30 postal ballot papers; and 
Ill. Discrepancy regarding 100 postal ballot papers-whether 
597 or 697?" 
5. The High Court dealt with the violations referred to above 
extensively so as to find out whether a cause of action is made out, but 
committed a grave error by considering the explanations offered in the 
replies filed by the respondents. All the three violations have been 
discussed meticulously by the High Court with reference to the replies 
furnished by the respondents and the court came to the conclusion that 
the petition did not disclose any cause of action since it lacked material 
facts. The High Court
ventured into such an elaborate enquiry in the 
light of the pleadings in the replies, to see whether the result of the 
election has been materially affected, apparently or rather mistakenly, 
under Order XIV Rule 2. 
6. Order XIV deals with settlement of issues and determination 
of suit on issues of law or on issues agreed upon. Order XIV Rule 2 
provides for disposal of a suit on a preliini~ary issue and under sub-Rule 
(2) of Rule 2, if the court is ofopinion that a case or part thereofcan be 
disposed of on an issue of law only, it may try that issue first, in case it 
relates to jurisdiction of the court or bar to entertaining the suit. After 
the 1976 amendment, the scope of a preliminary issue under Order XIV 
Rule 2(2) is limited only to two areas, one is jurisdiction of the court, and 
the other, bar to the suit as created by any law for the time being in 
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SUPREME COURT REPORTS 
[2017] I S.C.R. 
force. The whole purpose of trial on preliminary issue is to save time 
and money. Though it is not a mini trial, the court can and has to look into 
the entire pleadings and the materials available on record, to the extent 
not in dispute. But that is not the .situation as far as the en.quiry under 
Order VII Rule 11 is concerned. That is only on institutillnal defects. 
The court can only see whether the plaint, or rather the pleadings of the 
plaintiff, co11stitute a cause of action. Pleadings in the sense where, even 
after the stage of written· statement, if there is a replicatiq.n filed, in a 
given situation the same also can be looked into to see whether there is 
any admission on the part of the plaintifl'. In other words, (mder Order 
VII Rule 11, the court has to take a decision looking at the pleadings of 
. the plaintiff only and not on the rebuttal made by the defendant or any 
other materials produced by the defendant. 
7. It appears, the High Court committed a mistake in the present 
case, since four out of the six issues settled were taken as the preliminary 
issue~. Two such issues actually are relatable only to Order VII Rule 11 
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. of the Code, in the sense those issues pertained to the rejection at the 
in,stitution stage for lack of material facts and for not disclosing a cause 
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· of action. Merely because it is a trial on preliminary issues at the stage 
of Order XIV, the scope
does not change: or expand. The stage at which 
such an enquiry is undertaken by the court makes no difference since an 
enquiry tinder Order Vil Rule I !(a) of the Code can be taken up at any 
stage. 
8. Thus, for an enquiry under Order VII Rule 11 (a), only the 
pleadings of the plaintiff-petitioner can be looked into even if it is at the 
stage of trial of preliminary issues under Order XIV Rule 2(2). But the 
entire pleadings on both sides can be looked into,under Order XIV Rule 
2(2) to see whether the court has jurisdiction and whether there is a bar 
for entertaining the suit. 
9. In the present case, the issue re)ate~.to an enq11icy under Order 
VII Rule 11 (a) of the Code, and hence, there is no question of a 
preliminary issue being tried under Order XIV Rule 2(2) of the Code. 
The court exercised its jurisdiction only under Section 83( I )(a) of the 
Act read with Order VII Rule 11 (a) of the Code. Since the scope of the 
enquiry at that stage has to be limited only to the pleadings of the plaintiff, 
neither the written statement nor the averments, if any, filed by the 
opposite party for rejection under Order VII Rule 11 (a) of the Code or 
any other pleadings of the respondents can be considered forthat purpose.
KULDEEP SINGH PATHANIA v. BIKRAM SINGH JARYAL 
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[KURIAN, J.) 
·. 10. In Mayar (H.K.) Ltd. and others v. Owners & Parties, 
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Vessel M.V. Fortune Express and others', this Court has dealt with 
a similar issue. To the extent relevant, paragraph-12 reads as follows: 
"12. From the aforesaid, it is apparent 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 the powers under 
Order 7 Rule 11 of the Code. Essentially, 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 averrnents to be correct. A cause of action 
is a bundle of facts which are required to be proved for obtaining 
relief and forthe said purpose, the material facts are required to 
be stated but not the evidence except in certain cases where the 
pleadings relied on are in regard to misrepresentation, fraud, wilful 
default, undue influence or of the same nature. 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. ... " 
11. It
is not necessary to load this judgment with other judgments 
dealing with this first principle of Order VII Rule I !(a) of the Code. As 
held by this Court in Virender Nath Gautam v. Satpal Singh and 
others', at paragraph-52: 
"52. The High Court, in our considered opinion, stepped into 
prohibited area of considering correctness of allegations and 
evidence in support of averrnents by entering into the merits of 
the case which would be permissible only at the stage of trial of 
the election petition and not at the stage of consideration whether 
the election petition was maintainable and dismissed the petition. 
The said action, therefore, cannot be upheld and the order 
deserves to be set aside." 
12. As we have been taken through the averments in the election 
1 (2006)3 sec wo 
2 (2007) 3 sec 617 
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SUPREME COURT REPORTS 
[2017] 1 S.C.R. 
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petition and we are satisfied that the petition has disclosed a cause of 
action, it is not necessary to rernit the petition for a fresh enquiry in that 
regard. 
13. The appeal is however allowed, the impugned order is set 
aside and the election petition is remitted to the High Court to try it on 
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merits exvditiously, and being one filed in the year 2013, preferably 
with in a period of four months. We make it clear that we have not 
expressed any opinion on the merits of the case. 
14. There shall be no order as to costs. 
Divya Pandey 
Appeal allowed.