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Kuldeep Singh Pathania v. Bikram Singh Jaryal .
Factual and Procedural Background
The appellant, who contested the 2012 election for the Bhattiyat Assembly Constituency of the Himachal Pradesh Legislative Assembly, lost by a margin of 111 votes. He thereafter filed Election Petition No. 2 of 2013 before the High Court, primarily invoking Section 100(1)(d)(iii) of the Representation of the People Act, 1951, alleging three categories of electoral violations: (i) dual voting and discrepancies between the Electronic Voting Machine (EVM) record and Form 17-A at Polling Station No. 92, (ii) improper reception of 30 postal ballots, and (iii) a discrepancy involving either 597 or 697 postal ballots.
The High Court framed six issues, treating four—including Issues 2 and 3 on material facts and cause of action—as preliminary. Relying on respondents’ replies, the High Court dismissed the election petition for want of material facts under Section 83(1)(a) and absence of cause of action under Order 7 Rule 11(a) of the Code of Civil Procedure, 1908. The appellant challenged that dismissal before the Supreme Court.
Legal Issues Presented
- Whether, for the purpose of Order 7 Rule 11(a) CPC, the High Court was confined to examining only the pleadings in the election petition or could also consider the respondents’ replies when deciding if material facts and a cause of action were disclosed.
- Whether the election petition, on its face, contained sufficient material facts to survive dismissal under Section 83(1)(a) of the Representation of the People Act, 1951 and Order 7 Rule 11(a) CPC.
Arguments of the Parties
The opinion does not contain a detailed account of the parties' legal arguments.
Table of Precedents Cited
| Precedent | Rule or Principle Cited For | Application by the Court |
|---|---|---|
| Mayar (H.K.) Ltd. v. Vessel M.V. Fortune Express, (2006) 3 SCC 100 | For deciding an application under Order 7 Rule 11 CPC, the court must look only at the plaint to see if a cause of action is disclosed; allegations in the defendant’s written statement are irrelevant. | Used to hold that the High Court erred in relying on respondents’ replies when determining the sufficiency of the petitioner’s pleadings. |
| Virender Nath Gautam v. Satpal Singh, (2007) 3 SCC 617 | Court should not venture into the merits or evidentiary correctness of allegations while deciding maintainability of an election petition. | Cited to demonstrate that the High Court entered the “prohibited area” by examining evidence and correctness of allegations at a preliminary stage. |
Court's Reasoning and Analysis
The Supreme Court emphasized the distinct scopes of Order 7 Rule 11(a) CPC and Order 14 Rule 2(2) CPC:
- Order 7 Rule 11(a) concerns “institutional defects” and limits judicial scrutiny to the plaintiff’s pleadings to determine if a cause of action exists.
- Order 14 Rule 2(2) permits trial of preliminary issues only with respect to the court’s jurisdiction or a statutory bar, and even then the court may examine material from both parties.
The High Court misapplied these principles by invoking respondents’ replies while addressing Issues 2 and 3, which related solely to Order 7 Rule 11(a). By conducting an extensive inquiry into factual rebuttals, the High Court effectively undertook a mini-trial on merits, contrary to the limited inquiry mandated at that stage.
The Supreme Court, after independently reviewing the election petition, found that it did disclose a cause of action and contained material facts sufficient to proceed to trial. Consequently, the High Court’s dismissal was characterised as a “grave error.”
Holding and Implications
Appeal Allowed; High Court’s order dismissing Election Petition No. 2 of 2013 is set aside.
The election petition is remitted to the High Court for expeditious trial on merits, preferably within four months. The Supreme Court clarified that it expressed no opinion on the ultimate merits of the election petition.
Implications: The decision reinforces the restricted scope of judicial scrutiny under Order 7 Rule 11(a) CPC and underscores that, at the preliminary stage, courts must assess only the plaintiff’s pleadings without reference to defendants’ rebuttals. While no new precedent was established, the ruling serves as a cautionary guide to High Courts handling election petitions and similar preliminary objections.
Kurian Joseph, 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, insofar 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 7 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 14 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.
2. 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?”
3. The appellant is aggrieved since his petition has been dismissed Election Petition No. 2 of 2013, 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.
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 summarised in para 27 of the impugned judgment, which reads as follows:
“27. The “violations” alleged by the petitioner during polling and counting of votes can be grouped in the following three categories, which shall be dealt with one by one:
I. 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 of 30 postal ballot papers; and
III. 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 14 Rule 2.
6. Order 14 deals with settlement of issues and determination of suit on issues of law or on issues agreed upon. Order 14 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 14 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.
7. 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 7 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 7 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.
8. 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 7 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 14, 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 7 Rule 11(a) of the Code can be taken up at any stage.
9. Thus, for an enquiry under Order 7 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 14 Rule 2(2). But the entire pleadings on both sides can be looked into under Order 14 Rule 2(2) to see whether the court has jurisdiction and whether there is a bar for entertaining the suit.
10. In the present case, the issue relates to an enquiry under Order 7 Rule 11(a) of the Code, and hence, there is no question of a preliminary issue being tried under Order 14 Rule 2(2) of the Code. The Court exercised its jurisdiction only under Section 83(1)(a) of the Act read with Order 7 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 7 Rule 11(a) of the Code or any other pleadings of the respondents can be considered for that purpose.
11. In Mayar (H.K) Ltd. v. Vessel M.V Fortune Express (2006) 3 SCC 100, this Court has dealt with a similar issue. To the extent relevant, para 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.”
12. It is not necessary to load this judgment with other judgments dealing with this first principle of Order 7 Rule 11(a) of the Code. As held by this Court in Virender Nath Gautam v. Satpal Singh (2007) 3 SCC 617, at para 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.”
13. 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.
14. The appeal is however allowed, the impugned order Election Petition No. 2 of 2013 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.
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