Order VII Rule 11(a) of the Code. - As held by this Court in Virender Nath Gautam v. Satpal Singh and others[2], 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 averments 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.” As we have been taken through the averments in the election petition and we are satisfied that the petition has disclosed a cause of action, it is not necessary to remit the petition for a fresh enquiry in that regard. 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 merits expeditiously, and being one filed in the year 2013, preferably within a period of four months.

                                                                  REPORTABLE

                        IN THE SUPREME COURT OF INDIA

                        CIVIL APPELLATE JURISDICTION

                        CIVIL APPEAL NO. 4080 OF 2014



KULDEEP SINGH PATHANIA                         … APPELLANTS (S)

                                  VERSUS

BIKRAM SINGH JARYAL                            … RESPONDENT(S)




                               J U D G M E N T




KURIAN, J.:


Chapter III 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(1) 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 100 of the Act provides for  grounds
for declaring election  to  be  void.  Section  100(1)(d)(iii)  of  the  Act
provides that an election of a returned candidate  can  be  declared  to  be
void if the 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  of  any  vote  or  the
reception of any 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  11(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 court and bar to the suit created by any law in  force.  These  are  the
provisions relevant for consideration of the present case.

The  appellant  lost  election  from  Bhattiyat  Assembly  Constituency   of
Himachal Pradesh Legislative Assembly held  in  2012  by  a  margin  of  111
votes. He filed an election petition mainly on  the  grounds  under  Section
100(1)(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:

“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?”


Appellant is aggrieved since his petition has been dismissed, based  on  the
findings on the preliminary issues that  the  election  petition  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.

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  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;

Improper reception of 30 postal ballot papers; and
Discrepancy regarding 100 postal ballot papers-whether 597 or 697?”


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.

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 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, 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 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. Pleadings in the sense where, even  after  the
stage of written statement, if there is a  replication  filed,  in  a  given
situation 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
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.

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  issues.
Two such issues actually are relatable only to Order  VII  Rule  11  of  the
Code,  in  the  sense  those  issues  pertained  to  the  rejection  at  the
institution stage for lack of material facts and for not disclosing a  cause
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
under Order VII Rule 11(a) of the Code can be taken up at any stage.

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.

In the present case, the issue relates to an enquiry 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(1)(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 for that purpose.

In Mayar (H.K.) Ltd. and others v. Owners &  Parties,  Vessel  M.V.  Fortune
Express and others[1], 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 averments to be  correct.  A  cause  of  action  is  a
bundle of facts which are required to be proved  for  obtaining  relief  and
for the 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. …”



 It is not necessary to load this  judgment  with  other  judgments  dealing
with this first principle of Order VII Rule 11(a) of the Code.  As  held  by
this Court in Virender  Nath  Gautam  v.  Satpal  Singh  and  others[2],  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
averments  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.”



As we have been taken through the averments in the election petition and  we
are satisfied that the petition has disclosed a cause of action, it  is  not
necessary to remit the petition for a fresh enquiry in that regard.

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  merits
expeditiously, and being one filed in the year  2013,  preferably  within  a
period of four months. We make it clear  that  we  have  not  expressed  any
opinion on the merits of the case.

There shall be no order as to costs.


                                                              ..……………………….J.
                                                        (KURIAN JOSEPH)

                                                               .……………………….J.
                                                           (A.M. KHANWILKAR)


NEW DELHI;
JANUARY 24, 2017.
-----------------------
[1]    (2006) 3 SCC 100

[2]    (2007) 3 SCC 617



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9





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