[2017] 1 S.C.R. 915

KULDEEP SINGH PATHANIA

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.

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 G 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

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.

Virender Nath GauU1111 v. Satpal Singh and Others F

(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

Court ofHimaclrnl Pradesh at Shimla in Election Petition No. 2of2013. 1-1

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 F 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:

G "2) Whether the election petition is liable to be dismissed in limine

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,

based on the findings on the preliminary issues that the election petition A 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 B 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:-

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 preliiniary 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

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

0 . 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

E ..

 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.

. 10. In Mayar (H.K.) Ltd. and others v. Owners & Parties, A 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

A 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 B 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.