Full Judgment Text
REPORTABLE
2024 INSC 391
IN THE SUPREME COURT OF INDIA
CIVIL APPELLATE JURISDICTION
CIVIL APPEAL N0. 1389 OF 2024
( Arising out of SLP (C) No.11136 of 2023 )
SHEIKH NOORUL HASSAN … APPELLANT
VERSUS
NAHAKPAM INDRAJIT SINGH & ORS. … RESPONDENT(S)
J U D G M E N T
MANOJ MISRA, J.
1. This appeal is directed against the order of the High
1
Court of Manipur at Imphal dated 14.03.2023, whereby leave
has been granted to the election petitioner (the first respondent
herein) to file a replication in answer to the new facts asserted
in the written statement filed by the returned candidate (the
appellant herein).
Signature Not Verified
Digitally signed by
Sanjay Kumar
Date: 2024.05.08
12:54:23 IST
Reason:
1
High Court
Civil Appeal No. ____ of 2024 Page 1 of 30
Factual Matrix
2. The first respondent filed an election petition seeking a
declaration that the election of the returned candidate,
namely, the appellant herein, is null and void under: (a)
Section 100(1) (d) (i) (ii) and (iv); and (b) Section 100 (1) (b) of
2
the Representation of Peoples Act, 1951 . In addition, thereto,
a prayer was made to declare the election petitioner as duly
3
elected from the concerned legislative constituency of 12th
Manipur Legislative Assembly.
3. In the election petition, it was alleged, inter alia , that
the returned candidate had failed to make necessary
disclosures in the nomination paper/the affidavit (i.e., Form
26) which had a material bearing on the election result. In
support of that allegation, particulars of such non-disclosure
/ incorrect disclosure were detailed in the election petition.
These allegations, however, were not only traversed in the
written statement filed by the returned candidate (i.e. the
appellant herein) but additional facts were also laid out
2
1951 Act
3
4- Kshetrigao Assembly Constituency.
Civil Appeal No. ____ of 2024 Page 2 of 30
therein. As a result, the election petitioner filed an application
seeking leave to file a replication, which came to be allowed by
the impugned order of the High Court.
Impugned Order
4. The High Court impugned order allowed the
vide
application seeking leave to file subsequent pleading while,
inter alia , observing as follows:
“15. The petitioner has filed the election petition, inter
alia, on the ground that the first respondent has failed to
disclose the details – status of his bank accounts with
respective balances in Form 26. The first respondent has
also failed to disclose the details of liability and also the
car bearing DL4CNB4776 owned by him in Form 26.
16. On a reading of the election petition, it is seen that
the petitioner has also taken other grounds. However, in
reply to the ground for non-disclosure of the account
details, the first respondent replied in his written
statement that the said accounts opened for establishment
of Self Help Group, namely, Panthoibi SHG, Yaiphabi SHG.
Paragraphs 12 and 17 of the written statement speak
about the opening of the bank accounts and also stated
that some of the accounts have NIL balance and were lying
in a dormant condition at the time of filing nomination
papers. Therefore, there is no necessity to disclose the
same in Form 26. The opening of the accounts for
establishment of Self Help Groups, according to the
petitioner, is new plea and the petitioner has to controvert
the said facts by clarifying the relation between the
accounts and Self Help Groups.
17. The learned counsel for the petitioner submitted
that the accounts are joint accounts which actually
belonged to the first respondent and others and nowhere
mentioned that these accounts are the social or charitable
account. The argument of the learned counsel for the
petitioner appears to merit consideration.
Civil Appeal No. ____ of 2024 Page 3 of 30
18. The petitioner being election petitioner and the
election petition being civil litigation, the celebrated
principle of variance between pleading and proof is very
much attracted in the matter of appreciation of evidence.
It is lawful to the petitioner to file an application to add to
his pleas already made in the election petition and the only
condition thereon is the leave of the court. Even in cases
that require leave, it is open to the court to grant leave with
or without conditions.
19. It is pertinent to note that the law is well settled
that the plaintiff cannot be permitted to raise a new plea
under the garb of filing rejoinder/replication or take a plea
inconsistent to the pleas taken by him in the plaint, nor
the rejoinder can be filed as a matter of right, even the
Court can grant leave only after applying its mind on the
pleas taken in the plaint and the written statement.
xxx
23. The specific plea of the petitioner is that the first
respondent has asserted some new facts in his written
statement, particularly, paragraphs 1(i) to (x), 10, 12, 13,
14, 15, 16, 18, 18.1, 18.2, 18.3, 19, 21 and 30 and it is
necessary for the petitioner to reply by filing the
replication. Though the first respondent contended that
the petitioner has filed the proposed replication and
introducing new facts and also trying to fill up the lacuna,
nothing has been produced to prove the same.
24. Admittedly, on a reading of the averments set out
in the subsequent pleading/replication, it is clear that they
are the clarification and amplification of the earlier
pleading made in the election petition and if the pleading
of the election petition is read conjointly with the pleading
of the replication, the pleading of replication are the
addition of facts of the earlier facts of the election petition
and the annexed documents are also related with the
earlier facts of the election petition. In other words, the
replication of the petitioner is to controvert the averments
made in the written statement to the election petition. That
apart, prima facie, the averments pleaded in the
replication are not contrary to the averments made in the
election petition and in fact, they are only explanatory to
the plea taken by the first respondent in the written
statement.
Civil Appeal No. ____ of 2024 Page 4 of 30
25. The argument of the learned counsel for the first
respondent that the replication sought to be made by the
petitioner clearly violates the requirement of the provisions
of the Representation of People Act, 1951 and that the
petitioner sought to introduce new facts after the expiry of
45 days, cannot be countenanced for the reason that the
petitioner does not insert any new facts. It appears that
the first respondent has filed his written statement on
4.8.2022 and petition to grant leave to file replication was
filed on 7.9.2022 within a reasonable time.
26. As stated supra, the statement made in the
replication are the denial of the statement made in the
written statement filed by the first respondent to the
election petition. If the same is received, no prejudice
would be caused to the other side, especially, the first
respondent. Moreover, it is the bounden duty of the
election petitioner to clarify the averments made by the
first respondent in his written statement. That apart, there
is no bar for clarification of the earlier pleading, which has
already been taken in the election petition by the
petitioner.
xxx
31. …………. On a perusal of the replication filed by
the petitioner, this Court finds that the averments set out
in the replication are not contrary to the averments set out
in the election petition and these are only explanatory to
the plea advanced by the first respondent in the written
statement. Therefore, in order to explain/clarify the plea of
the first respondent and for fair trial of the election petition
and also in the interest of justice, this court is inclined to
grant leave to the petitioner to file replication.”
5. We have heard Mr. Shyam Divan, learned senior
counsel, for the appellant (i.e., the returned candidate) and
Mr. Anupam Lal Das, learned senior counsel, for the
contesting respondent (i.e., the election petitioner).
Civil Appeal No. ____ of 2024 Page 5 of 30
Submissions on behalf of Appellant/Returned Candidate
6. Mr. Shyam Divan appearing for the appellant, inter
alia , submitted:
(i) The remedy of an election petition is a statutory
remedy governed by the provisions of the 1951 Act. There is
no provision in the 1951 Act for filing a replication in response
to a written statement. Hence, there is no foundation in law
for the impugned order;
(ii) Election petitioner’s replication is barred by the
4
provisions of section 81 (1) of the 1951 Act as it sets out a
time-limit of 45 days for filing an election petition. Taking into
consideration new allegations introduced through a
replication would tantamount to entertaining a time-barred
petition. Allegations in paragraphs 15, 16, 18, 19, 22 and 23
of the Replication are new. Not only that, new documents have
4
Section 81. Presentation of petitions.— (1) An election petition calling in question any election may be
presented on one or more of the grounds specified in sub section (1) of Section 100 and Section 101 to the High
Court by any candidate at such election or any elector within 45 days from, but not earlier than the date of election
of the returned candidate, or if there are more than one returned candidate at the election and dates of that election
are different, the latter of those two dates.
Explanation .- In this sub-section, elector means a person who was entitled to vote at the election, to which the
election petition relates, whether he has voted at such election or not.
(2) (Omitted by Act 47 of 1966, w.e.f. 14.12.1966)
(3) Every election petition shall be accompanied by as many copies thereof as there are respondents mentioned
in the petition, and every such copy shall be attested by the petitioner under his own signature to be a true copy
of the petition.
Civil Appeal No. ____ of 2024 Page 6 of 30
been annexed by way of: (i) Ex.-A-18- List of Self-Help groups
in the concerned Assembly Constituency; (ii) Ex.- A-19 and 20
- Status report of Income Tax demands; and (iii) A-21- Original
Copy of registration certificate of vehicle number
DL4CNB4776.
Submissions on behalf of First Respondent/ Election
Petitioner
7. Per contra, Mr. Anupam Lal Das, inter alia , submitted:
5
(i) Section 87 of the 1951 Act provides that subject
to the provisions of the Act, and of any rules made thereunder,
an election petition shall be tried by the High Court in
accordance with the procedure applicable under the Code of
6
Civil Procedure, 1908 to try a suit. A written statement can
7
be rebutted under Order VIII Rule 9 of the CPC. Therefore, it
5
Section 87. Procedure before the High Court.— (1) Subject to the provisions of this Act, and of any rules
made thereunder, every election petition shall be tried by the High Court, as nearly as may be, in accordance
with the procedure applicable under the Code of Civil Procedure, 1908 (5 of 1908) to the trial of suits:
Provided that the High Court shall have the discretion to refuse, for reasons to be recorded in writing, to examine
any witness or witnesses, if it is of the opinion that the evidence of such witness or witnesses is not material for
the decision of the petition or that the party tendering such witness or witnesses is doing so on frivolous grounds
or with a view to delay the proceedings.
(2) The provisions of the Indian Evidence Act, 1872 (1 of 1872), shall subject to the provisions of this Act, be
deemed to apply in all respects to the trial of an election petition.
6
CPC
7
Order VIII Rule 9.— Subsequent pleadings.— No pleading subsequent to the written statement of a
defendant other than by way of defence to set off or counterclaim, and shall be presented except by the leave of
the Court and upon such terms as the Court thinks fit; but the Court may at any time require a written statement
or additional written statement from any of the parties and fix a time of not more than 30 days for presenting the
same.
Civil Appeal No. ____ of 2024 Page 7 of 30
is incorrect to state that filing of a replication in the
proceedings of an election petition has no legal basis.
(ii) No new case has been introduced by way of the
replication. Though, by way of rebuttal of paragraphs 1(i) to (x)
and paragraphs 14, 18.1 and 18.2 of the written statement,
which introduced new facts, explanatory facts, by way of
clarification / amplification of earlier pleading, have been
pleaded, which is permissible in law. These include: (a) details
of bank accounts; (b) details of tax demands/liability; and (c)
ownership of vehicle, which are referred to in the original
petition. The replication only seeks to rebut the explanation
offered in the written statement in respect of those accounts,
demands and the vehicle.
Analysis
8. Having taken note of the rival submissions, before we
proceed to weigh the rival submissions in respect of the
correctness of the impugned order, it would be useful to
consider the following issue:
Whether during the course of the proceeding of an
election petition, preferred under the provisions of the 1951
Civil Appeal No. ____ of 2024 Page 8 of 30
Act, subsequent pleading, as envisaged in Order VIII Rule 9
CPC, is permissible? If yes, in what circumstances leave to file
such subsequent pleading may be granted by an Election
Tribunal/ Court?
Subsequent Pleading can be filed in an Election Petition.
9. Before we deal with the aforesaid issue, it would be
useful to refer to the provisions of the CPC in relation to
pleadings. Order VI Rule 1 of the CPC declares that pleading
shall mean a plaint and a written statement. Rule 9 of Order
VIII specifically edicts that no pleading subsequent to the
written statement of a defendant other than by way of defence
to set off or counter-claim shall be presented except by the
leave of the Court. Though, however, the Court may at any
time require a written statement or additional written
statement.
8
10. In Anant Construction (P) Ltd. v. Ram Niwas , High
Court of Delhi, in an exhaustive judgment authored by R. C.
Lahoti, J, as His Lordship then was, dealt with the terms
‘Replication’ and ‘Rejoinder’, as is commonly used for
8
1994 (31) DRJ 205 = 1994 SCC OnLine Del 615
Civil Appeal No. ____ of 2024 Page 9 of 30
subsequent pleadings, as also as to when leave for filing
subsequent pleading may be granted by the Court. After
referring to various legal texts including Corpus Juris
Secundum, it was observed:
“12. A more detailed rather exhaustive statement of law
is to be found in CORPUS JURIS SECUNDUM. It would be
useful to extract and reproduce the following paragraphs:
“A reply or replication is purely a defensive
pleading, the office or function of which is to deny,
or allege facts in avoidance of, new matters alleged
in the plea or answer and thereby join or make
issue as to such new matters. (para 184)
No reply or replication is necessary where the
issues are completed by, and no new matter is set
up, in the plea or answer. (para 185 a.)
At common law a replication is necessary
where a plea introduces new matter and concludes
with a verification; but under the codes, practice
acts, or rules of civil procedure of a number of
states a reply to new defensive matter is not
necessary or is necessary only when ordered by the
court . A reply to a counterclaim is generally
necessary; but under some code provisions no
reply or replication is required in any case. (para
185 b.(1))
The discretion which the court possesses,
under some codes or practice acts, to direct the
plaintiff, on the defendant’s application, to reply to
new matter alleged as a defence by way of
avoidance will be exercised in favour of granting the
application where the new matter, if true, will
constitute a defence to the action and granting
the order will prevent surprise and be of
substantial advantage to the defendant without
prejudice to the plaintiff. (para 185 b.(ii))
A replication, however, is unknown in the
practice of a few states and in some states is not
permitted. So too, under a statute providing that
there shall be no reply except in enumerated
situations, a reply is not permissible in a case not
within one of the exceptions. Indeed, generally, in
Civil Appeal No. ____ of 2024 Page 10 of 30
jurisdictions wherein pleading is governed by
statutory provisions, plaintiff has no right to file a
reply when a reply is not required by statute or order
of court and a reply filed in a case where no reply is
required is to be treated as a nullity , unless, and to
the extent that, it constitutes an admission by
plaintiff, as discussed infra para 204.
Under the common law system of pleading,
plaintiff may, at his election, file a replication to a
special plea setting up an affirmative defence . On
the other hand, it is proper to reject a replication to
pleas which merely traverse allegations of the
declaration and set up no new matter . Where the
plea concludes to the contrary, plaintiff cannot
reply with any new matter but must either accept
it by a similiter or demur. So a good special traverse
can be answered only by joining issue thereon and
not by filing a replication . (para 191).
13. Decided cases in India use the term rejoinder
loosely for a reply or replication filed by the plaintiff in
answer to the defendant’s plea. Strictly speaking a reply
filed by the plaintiff (when permissible) is a replication. A
pleading filed by the defendant subsequent to replication
is a rejoinder.
14. A replication is not to be permitted to be filed
ordinarily, much less in routine. A replication is
permissible only in three situations: (1) when required by
law; (2) when a counter-claim is raised by the defendant;
(3) when the court directs or permits a replication being
filed. The court may direct filing of a replication when the
court having scrutinised the plaint and the written
statement feels the necessity of asking the plaintiff to join
specific pleadings to a case specifically and newly raised
by the defendant in the written statement. The plaintiff
may also feel the necessity of joining additional pleading to
put forth his positive case in reply to the defendant’s case
but he shall have to seek the leave of the court by
presenting the proposed replication along with an
application seeking leave to file the same. The court having
applied its mind to the leave sought for, may grant or
refuse the leave. Ordinarily the necessity of doing so would
arise only for ‘confession and avoidance.’
Civil Appeal No. ____ of 2024 Page 11 of 30
Having observed so, a distinction between a plea requiring
amendment of the plaint and a plea sought to be introduced
by way of a replication was noticed as under:
“17. A distinction between a plea requiring amendment
of the plaint and a plea sought to be introduced by
replication shall have to be kept in view. A plea which
essentially constitutes the foundation of a claim made by
the plaintiff or which is essentially a part of plaintiff's
cause of action cannot be introduced through a
replication. As already stated replication is always a
defensive pleading in nature. It is by way of confession and
avoidance or explanation of a plea raised in defence. It will
be useful to quote from Halsbury’s Laws of England
(Volume 36, para 62, page 48):-
“62. Necessity for amendment. The fact that a party
may not raise any new ground of claim, or include
in his pleadings any allegation or fact inconsistent
with his previous pleadings, has been considered
elsewhere. In order to raise such a new ground of
claim, or to include any such allegation, amendment
of the original pleading is essential.”
17.1 In MSM Sharma versus Sri Krishna Sinha, AIR
1959 SC 395 , their Lordships refused to consider a plea
raised in rejoinder for the first time, observing:
“The case of bias of the Chief Minister (respondent
No.2) has not been made anywhere in the petition
and we do not think it would be right to permit the
petitioner to raise this question, for it depends on
facts which were not mentioned in the petition but
were put forward in a rejoinder to which the
respondent had no opportunity to reply.”
Finally, the Court summed up its conclusions as under :
“ 24. To sum up:
(1) ‘Replication’ and ‘rejoinder’ have well defined
meanings. Replication is a pleading by plaintiff in answer
to defendant’s plea. ‘Rejoinder’ is a second pleading by
defendant in answer to plaintiff’s reply i.e. replication.
Civil Appeal No. ____ of 2024 Page 12 of 30
(2) To reach the avowed goal of expeditious disposal, all
interlocutory applications are supposed to be disposed of
soon on their filing. A delivery of copy of the I.A. to the
counsel for opposite party is a notice of application. Reply,
if any, may be filed in between, if the time gap was
reasonable enough, enabling reply being filed.
(3) I.A.s which do not involve adjudication of
substantive rights of parties and / or which do not require
investigation or inquiry into facts are not supposed to be
contested by filing written reply and certainly not by filing
replication.
(4) A replication to written statement is not to be
filed nor permitted to be filed ordinarily, much less in
routine. A replication is permissible in three
situations:
i. when required by law;
ii. when a counter claim is raised or set off is
pleaded by defendant;
iii. when the court directs or permits a replication
being filed.
(5) Court would direct or permit replication being
filed when having scrutinised plaint and written
statement the need of plaintiff joining specific
pleading to a case specifically and newly raised in
written statement is felt. Such a need arises for the
plaintiff introducing a plea by way of ‘confession and
avoidance’.
(6) A plaintiff seeking leave of the Court has to
present before it the proposed replication. On applying
its mind the court may grant or refuse the leave.
(7) A mere denial of defendant’s case by plaintiff
needs no replication. The plaintiff can rely on rule of
implied or assumed traverse and joinder of issue.
(8) Subsequent pleadings are not substitute for
amendment in original pleadings.
(9) A plea inconsistent with the plea taken in
original pleadings cannot be permitted to be taken in
subsequent pleadings.
(10) A plea which is foundation of plaintiff’s case or
essentially a part of cause of action of plaintiff, in
absence whereof the suit will be liable to be dismissed
or the plaint liable to be rejected, cannot be introduced
for the first time by way of replication .”
(Emphasis supplied)
Civil Appeal No. ____ of 2024 Page 13 of 30
11. Now we shall have a look at the provisions of the 1951
Act in respect of addressing disputes regarding elections. Part
VI of the 1951 Act, which comprises of five Chapters, deals
with disputes regarding elections. Chapter I contains the
definition clause (i.e., Section 79). Chapter II comprising of
Sections 80 to 85 deals with presentation of election petitions
to the High Court. Section 80 provides that no election shall
be called in question except by an election petition presented
in accordance with the provisions of Part VI. Section 80A, inter
, provides that the High Court shall have jurisdiction to try
alia
an election petition. Section 81, inter alia , provides that an
election petition calling in question any election may be
presented on one or more of the grounds specified in sub-
section (1) of Section 100 and Section 101 to the High Court
by any candidate at such election or any elector within 45 days
9
from the date of election. Section 82 specifies as to who shall
10
be the parties to an election petition. Whereas, Section 83 ,
9
Section 82. Parties to the petition. — A petitioner shall join as respondents to his petition—
(a) where the petitioner, in addition to claiming declaration that the election of all or any of the returned
candidates is void, claims a further declaration, that he himself or any other candidate has been duly elected, all
the contesting candidates other than the petitioner, and where no such for the declaration is claimed, all the
returned candidates; and
(b) any other candidate against whom allegations of any corrupt practice are made in the petition.
10
Section 83. Contents of petition.— (1) An election petition—
Civil Appeal No. ____ of 2024 Page 14 of 30
inter alia, specifies as to what an election petition must
11
contain. Section 84 speaks of the reliefs which an election
petitioner may claim. Section 85, which dealt with the
procedure on receiving petition, has been omitted with effect
from 14.12.1966 by Act No.47 of 1966.
12. Chapter III comprising of Sections 86 to 107 deals with
12
trial of Election Petitions. Section 86 , inter alia , provides
(a) shall contain a concise statement of the material facts on which the petitioner relies;
(b) shall set forth full particulars of any practice that the petitioner alleges, including as full statement as possible
of the names of the parties alleged to have committed such corrupt practice and the date and place of the
commission of each such corrupt practice; and
(c) shall be signed by the petitioner and verified in the manner laid down in the Code of Civil Procedure, 1908
(5 of 1908) for the verification of pleadings:
[Provided that where the petitioner alleges any corrupt practice, the petition shall also be accompanied by an
affidavit in the prescribed form in support of the allegation of such corrupt practice and the particulars thereof.]
(2) Any schedule or annexure to the petition shall also be signed by the petitioner and verified in the same manner
as the petition.
11
Section 84. Relief that may be claimed by the petitioner.— A petitioner may, in addition to claiming a
declaration that the election of all or any of the returned candidates is void, claim a further declaration that he
himself or any other candidate has been duly elected.
12
Section 86. Trial of election petitions.— (1) The High Court shall dismiss an election petition which does
not comply with the provisions of section 81 or section 82 or section 117.
Explanation . – An order of the High Court dismissing an election petition under this sub-section shall be deemed
to be an order made under clause (a) of section 98.
(2) As soon as may be after the election petition has been presented to the High Court, it shall be referred to the
judge or one of the judges who has or have been assigned by the Chief Justice for the trial of election petitions
under sub-section (2) of section 80 A.
(3) Where more election petitions than one are presented to the High Court in respect of the same election, all of
them shall be referred for trial to the same judge, who may, in his discretion, try them separately or in one or
more groups.
(4) Any candidate not already a respondent shall, upon application made by him to the High Court within 14
days from the date of commencement of the trial and subject to any order as to security for costs, which may be
made by the High Court, being entitled to be joined as a respondent.
Explanation .— For the purposes of this sub-section and of section 97, the trial of a petition shall be deemed to
commence on the date fixed for the respondent to appear before the High Court and answer the claim or claims
made in the petition.
(5) The High Court may, upon such terms as to costs and otherwise, as it may deem fit, allow the particular
particulars of any corrupt practice, alleged in the petition to be amended or amplified in such manner, as may in
its opinion, be necessary for ensuring affair and effective trial of the petition, but shall not allow any amendment
of the petition which will have the effect of introducing particulars of a corrupt practice, not previously alleged
in the petition.
Civil Appeal No. ____ of 2024 Page 15 of 30
that,— (a) the High Court shall dismiss an election petition
which does not comply with the provisions of Section 81 or
Section 82 or Section 117 of the 1951 Act; (b) the High Court
may allow the particulars of any corrupt practice alleged in the
petition to be amended or amplified, but shall not allow any
amendment of the petition which will have the effect of
introducing particulars of a corrupt practice, not previously
alleged in the petition; and (c) the election petition shall be
tried as expeditiously as possible and there shall be an
endeavour to conclude the trial within six months from the
date on which the election petition is presented to the High
Court for trial. Section 87 provides that every election petition,
subject to the provisions of the Act, and of any rules made
there under, be tried by the High Court, as nearly as may be,
in accordance with the procedure applicable under the CPC to
the trial of suits. Sections 93 to 99 deal with other procedural
aspects which are not relevant for the controversy on hand.
(6) The trial of an election petition shall, so far as is practicable consistently with the interest of justice in respect
of the trial, be continued from day to day until its conclusion, unless the High Court finds the adjournment of the
trial beyond the following day to be necessary for reasons to be recorded.
(7) Every election petition shall be tried as expeditiously as possible and endeavour shall be made to conclude
the trial within six months from the date on which the election petition is presented to the High Court for trial.
Civil Appeal No. ____ of 2024 Page 16 of 30
13
Section 100 enumerates the grounds for declaring election
to be void. Section 101 deals with a situation when a candidate
other than the returned candidate may be declared to have
been elected. Section 102 addresses a situation where during
the trial of an election petition, it appears that there is an
equality of votes between candidates. Sections 103 to 107 deal
with other procedural aspects which are not relevant for the
case on hand.
13
Section 100. Grounds for declaring election to be void.— (1) Subject to the provisions of sub-section (2),
if the High Court is of opinion –
(a) that on the date of his election, returned candidate was not qualified, or was disqualified, to be chosen to fill
the seat under the Constitution or this Act or the Government of Union Territories Act, 1963 (20 of 1963); or
(b) that any corrupt practice has been committed by a returned candidate or his election agent or by any other
person with the consent of a returned candidate or his election agent; or
(c) that any nomination has been properly rejected; or
(d) that the result of the election, insofar as it concerns a returned candidate, has been materially affected –
(i) by the improper acceptance of any nomination, or
(ii) by any corrupt practice committed in the interests of the returned candidate by an agent other than his election
agent; or
(iii) by the improper reception, refusal or rejection of any vote or the reception of any vote which is void; or
(iv) by any non-compliance with the provisions of the Constitution or of this Act or of any rules or orders made
under this Act,
the High Court shall declare the election of the return candidate to be void.
(2) If in the opinion of the High Court, returned candidate has been guilty by an agent, other than his election
agent, of any corrupt practice but the High Court is satisfied –
(a) that no such practice was committed at the election by the candidate or his election agent, and every such
correct practice was committed contrary to the orders, and without the consent, of the candidate, or his election
agent;
(b) * (omitted by Act 58 of 1958)
(c) that the candidate and his election agent took all reasonable means for preventing the commission of corrupt
practises at the election; and
(d) that in all other respects the election was free from any corrupt practice on the part of the candidate or any of
his agents,
then the High Court may decide that the election of the return candidate is not void.
Civil Appeal No. ____ of 2024 Page 17 of 30
13. Chapter IV deals with withdrawal and abatement of
election petition, whereas Chapter IVA deals with appeals.
Chapter V deals with costs and security of costs.
14. Part VII of the 1951 Act enlists corrupt practices and
electoral offences.
15. A plain reading of Section 87 of the 1951 Act would
indicate that, subject to the provisions of the 1951 Act and of
any rules made thereunder, an election petition is to be tried,
as nearly as may be, in accordance with the procedure
applicable under the CPC to the trial of suits. Order VI Rule 1
of CPC defines pleading as a plaint and a written statement.
The object and purpose of pleadings is to ensure that the
litigants come to trial with all issues clearly defined. Its object
is also to ensure that each side is fully alive to the questions
that are likely to be raised or considered so that they may have
an opportunity of placing the relevant evidence appropriate to
the issues before the Court for its consideration. A case not
specifically pleaded can be considered by the court only where
the pleadings in substance, though not in specific terms,
contain the necessary averments to make out a particular
Civil Appeal No. ____ of 2024 Page 18 of 30
case, and the issues framed also generally cover the question
involved and the parties proceed on the basis that such case
was at issue and had led evidence thereon (see Bachhaj Nagar
14
v. Nilima Mandal and Anr. ) .
16. Replication, though not a pleading as per Rule 1 of
Order VI, is permissible with the leave of the Court under Order
VIII Rule 9 of the CPC, which gives a right to file a reply in
defence to set-off or counter-claim set up in the written
statement. However, if filing of replication is allowed by the
Court, it can be utilised for the purposes of culling out issues.
But mere non-filing of a replication would not mean that there
has been admission of the facts pleaded in the written
statement (see K. Laxmanan v. Thekkayil Padmini and
15
Ors. ) .
17. Section 83 of the 1951 Act mandates that an election
petition must contain a concise statement of the material facts
on which the petitioner relies. Additionally, an election petition
should set forth full particulars of any corrupt practice that the
petitioner alleges, including as full a statement as possible of
14
(2008) 17 SCC 491, paragraphs 13 and 17
15
(2009) 1 SCC 354, paragraph 29
Civil Appeal No. ____ of 2024 Page 19 of 30
the names of the parties alleged to have committed such
corrupt practice and the date and place of the commission of
each such practice. Since, an election petition is to be
dismissed under sub-section (1) of Section 86 if not filed within
the time specified in Section 81, such material facts and
particulars as to commission of corrupt practice are required
to be given in the election petition and not in the replication
filed much after the expiry of the period of limitation for filing
election petition. The material facts and particulars alleged for
the first time in the replication and not forming part of the
averment made in the election petition cannot be tried and
cannot be made the subject matter of issues framed by the
court (See Jeet Mohinder Singh v. Harminder Singh
16
Jassi ).
18. Though the High Court while dealing with an election
petition exercises powers under the CPC, those powers are
subject to the provisions of the 1951 Act and of any rules made
thereunder. In consequence, the general power of amendment
of a pleading or of grant of leave to file replication, as is
16
(1999) 9 SCC 386, paragraph 45
Civil Appeal No. ____ of 2024 Page 20 of 30
otherwise available to a Court under Order VI Rule 17 and
Order VIII Rule 9 of the CPC, is limited by the provisions of the
1951 Act and the rules made thereunder. For example, sub-
section (5) of Section 86 of the 1951 Act provides that the High
Court may allow the particulars of any corrupt practice alleged
in the petition to be amended or amplified in such manner as
may, in its opinion, be necessary for ensuring a fair and
effective trial of the petition, but it shall not allow any
amendment of the petition which will have the effect of
introducing particulars of a corrupt practice not previously
alleged in the petition. The significance of sub-section (5) of
Section 86 of the 1951 Act has been considered by a three-
Judge Bench of this Court in F.A. Sapa and others v. Singora
17
and others in the following terms:
“19. …….Section 86 (5) as it presently stands empowers
the High Court to allow the ‘particulars’ of any corrupt practice
alleged in the petition to be amended or amplified provided the
amendment does not have the effect of widening the scope of
the election petition by introducing particulars in regard to a
corrupt practice not previously alleged or pleaded within the
period of limitation in the election petition. In other words the
amendment or amplification must relate to particulars of a
corrupt practice already pleaded and must not be an effort to
expand the scope of the enquiry by introducing particulars
regarding a different corrupt practice not earlier pleaded. Only
the particulars of that corrupt practice of which the germ exists
in the election petition can be amended or amplified and there
17
(1991) 3 SCC 375
Civil Appeal No. ____ of 2024 Page 21 of 30
can be no question of introducing a new corrupt practice. It is
significant to note that Section 86 (5) permits ‘particulars’ of
any corrupt practice ‘alleged in the petition’ to be amended or
amplified and not the ‘material facts’. It is, therefore, clear from
the trinity of clauses (a) and (b) of Section 83 and sub-section
(5) of Section 86 that there is a distinction between ‘material
facts’ referred to in clause (a) and ‘particulars’ referred to in
clause (b) and what Section 86 (5) permits is the amendment /
amplification of the latter and not the former. Thus, the power
of amendment granted by section 86 (5) is relatable to clause
(b) of Section 83 (1) and is coupled with a prohibition, namely,
the amendment will not relate to a corrupt practice not already
pleaded in the election petition. The power is not relatable to
clause (a) of Section 83 (1) as the plain language of Section 86
(5) confines itself to the amendments of ‘particulars’ of any
corrupt practice alleged in the petition and does not extend to
‘material facts’…..”
19. As to what meaning is to be ascribed to the expression
‘material facts’, and what a pleading must contain, a three-
Judge Bench of this Court in Harkirat Singh v. Amrinder
18
Singh observed as under:
“48. The expression “material facts” has neither been
defined in the Act nor in the Code. According to the dictionary
meaning, “material” means “fundamental”, “vital”, “basic”,
“cardinal”, “central”, “crucial”, “decisive", “essential”, “pivotal”,
“indispensable”, “elementary”, or “primary” [Burton’s Legal
Thesaurus (3rd Edition), p.349]. The phrase
“material facts”, therefore, may be said to be those facts upon
which a party relies for its claim or defence. In other words,
“material facts” are facts upon which the plaintiff’s cause of
action or the defendant’s defence depends. What particulars
could be said to be material facts would depend upon the facts
of each case and no rule of universal application can be laid
down. It is, however, absolutely essential that all basic and
primary facts which must be proved at the trial by the party to
establish the existence of a cause of action or defence are
material facts and must be stated in the pleading by the party.
18
(2005) 13 SCC 511
Civil Appeal No. ____ of 2024 Page 22 of 30
51. A distinction between “material facts” and “particulars”,
however, must not be overlooked. “Material facts” are primary
or basic facts which must be pleaded by the plaintiff or by the
defendant in support of the case set up by him either to prove
his cause of action or defence. “Particulars”, on the other hand,
are details in support of “material facts” pleaded by the party.
They amplify, refine and embellish 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.
“Particulars” thus ensure conduct of fair trial and would not
take the opposite party by surprise.
52. All “material facts” must be pleaded by the party in
support of the case set up by him. Since the object and purpose
is to enable the opposite party to know the case he has to meet
with, in the absence of pleading, a party cannot be allowed to
lead evidence. Failure to state even a single material fact, hence,
will entail dismissal of the suit or petition. Particulars, on the
other hand, are the details of the case which is in the nature of
evidence a party would be leading at the time of trial.”
20. In light of the analysis above, we are of the view that by
virtue of the provisions of Section 87 (1) of the 1951 Act, the
High Court, acting as an Election Tribunal, subject to the
provisions of the 1951 Act and the rules made thereunder, is
vested with all such powers as are vested in a civil court under
the CPC. Therefore, in exercise of its powers under Order VIII
Rule 9 of the CPC, it is empowered to grant leave to an election
petitioner to file a replication.
21. However, such leave is not to be granted mechanically.
The Court before granting leave must consider the averments
Civil Appeal No. ____ of 2024 Page 23 of 30
made in the plaint/election petition, the written statement and
the replication. Upon consideration thereof, if the Court feels
that to ensure a fair and effective trial of the issues already
raised, the plaintiff/election petitioner must get opportunity to
explain/clarify the facts newly raised or pleaded in the written
statement, it may grant leave upon such terms as it deems fit.
Further, while considering grant of leave, the Court must bear
in mind that,— (a) a replication is not needed to merely
traverse facts pleaded in the written statement; (b) a replication
is not a substitute for an amendment; and (c) a new cause of
action or plea inconsistent with the plea taken in original
petition/plaint is not to be permitted in the replication.
Grant of leave justified
22. In the instant case, the material facts alleged in the
election petition, inter alia, were that while filing nomination
papers the returned candidate had failed to disclose: (a) details
of some of his bank accounts (i.e. six in number); (b)
ownership of a motor vehicle, which stood registered in his
name; (c) details of his spouse’s profession or occupation; (d)
the investment made by him on the land, by way of
Civil Appeal No. ____ of 2024 Page 24 of 30
development, construction etc.; and (e) the details of his
liability owed to the Bank.
23. In his written statement, the returned candidate
(appellant herein) before giving a para-wise reply to the
averments made in the election petition, made certain
explanatory/preliminary averments in paragraph 1.
Thereafter, in paragraph 10, it was averred that the returned
candidate had filed two nomination papers along with form 26
affidavits and both were accepted after proper scrutiny on
9.2.2022. In paragraph 12, the returned candidate gave an
explanation for bank account number 920010008072418
maintained with the Axis Bank. The explanation was to the
effect that this account was of a self-help group for the
purposes of providing aid to those who were affected by
COVID-19 pandemic. In paragraph 13 a similar explanation
was offered in respect of another bank account number
920010008661144 maintained with the Axis Bank. In
paragraph 14, it was averred that the aforesaid bank accounts
actually did not belong to the returned candidate, his spouse
or dependents, but were for social and charitable purpose, and
Civil Appeal No. ____ of 2024 Page 25 of 30
that the returned candidate was associated with those
accounts in a fiduciary capacity. It was alleged that those
accounts were actually of self-help groups therefore, the
returned candidate was under no obligation to disclose the
amounts of money available in those accounts. In paragraph
15 of the written statement, an explanation was offered in
respect of Axis Bank account number 910010004837498. It
was claimed that the account had a zero balance and was lying
dormant at the time of filing nomination papers, therefore no
disclosure was warranted. The returned candidate also denied
that there was an existing liability against that account.
Similarly, in paragraph 16 of the written statement it was
stated that Axis Bank account number 915020012865061 had
zero balance and was lying dormant at the time of filing
nomination paper, therefore no disclosure was warranted. In
paragraph 18 of the written statement, fact with regard to filing
of a writ petition to protect rights of forest dwellers was
disclosed, and in paragraph 18.1, in respect of ICICI Bank
account number 264301001639, explanation was offered to
the effect that it was a joint bank account for the benefit of
Civil Appeal No. ____ of 2024 Page 26 of 30
victim families dwelling in the forest, and that the account was
in the name of certain other persons whereas the returned
candidate had signed in the account opening form as a patron.
In paragraph 18.2, a further statement was made that the
bank account did not belong to the returned candidate, his
spouse, or dependents, and that the account was for
social/charitable use wherein the returned candidate had
associated in a fiduciary capacity of a coordinator/facilitator.
Further, to substantiate the said plea, the details of the 56
affected poor families were given. In paragraph 18.3, another
defence in respect of those accounts was taken. In paragraph
19, it was averred that the motor vehicle of which disclosure
was not made by the returned candidate had been gifted to one
person in the year 2012, therefore there was no concealment
in respect of that vehicle. In paragraph 21 of the written
statement, it was stated that since value of immovable property
was disclosed, there was no separate disclosure as regards the
amount spent in the construction of residential house standing
thereupon. Thus, there was no concealment. In paragraph 30
of the written statement, apart from a denial of the averments
Civil Appeal No. ____ of 2024 Page 27 of 30
made in the paragraph of the election petition under reply,
there was a statement with regard to filing of two nomination
papers along with two affidavits.
24. In the application seeking leave to file replication, the
election petitioner stated that the returned candidate had, in
paragraphs 1 (I) to (x), 10, 12, 13, 14, 15, 16, 18, 18.1, 18.2,
18.3, 19, 21 and 30, stated new facts of which a reply was
required, therefore leave to file a replication be granted. In the
replication, in paragraph 15, the election petitioner dealt with
account number 920010008072418 maintained with the Axis
Bank. Paragraph 16 of the replication dealt with account
number 920010008661144, whereas paragraph 17 dealt with
account numbers 920010008072418, 920010008661144.
Similarly in paragraph 18 account number 910010004837498
was discussed and a report in respect of demand analysis and
recoverability status was provided in a tabular form. In
paragraph 19 account number 915020012865061 was
discussed. Likewise, in paragraph 22, account number
264301001639 of the ICICI bank was discussed. In paragraph
23 again, account number 264301001639 was discussed. In
Civil Appeal No. ____ of 2024 Page 28 of 30
paragraph 24, the registration of the vehicle in the name of the
returned candidate was reiterated, and the claim that the
vehicle was gifted in the year 2012 was denied. In paragraph
25, it was stated that whether the disclosure already made in
respect of profession or occupation of spouse was proper or
not, is for the Court to decide. Similarly, in paragraph 26 it was
stated that the returned candidate was obliged to disclose the
amount invested in the construction of residential house.
25. It is clear from above that the non-disclosure of bank
accounts, alleged in the election petition, was sought to be
explained by the returned candidate in his written statement.
The replication only sought to meet that explanation. Similarly,
the reply in the written statement in respect of other material
facts pleaded in the election petition was sought to be dealt
with, by way of explanation, in the replication. The replication
does not seek to incorporate any new material facts or a new
cause of action to question the election. It only seeks to explain
the averments made in the written statement. Thus, in our
view, leave to file replication was justified and well within the
discretionary jurisdiction of the High Court.
Civil Appeal No. ____ of 2024 Page 29 of 30
26. We, therefore, find no merit in this appeal. The same is
dismissed. There is no order as to costs.
………………………………….. CJI.
(Dr. D.Y. Chandrachud)
.............................................. J.
(J.B. Pardiwala)
.............................................. J.
(Manoj Misra)
New Delhi;
May 8, 2024
Civil Appeal No. ____ of 2024 Page 30 of 30