DURLABHJIBHAI HARAKJIBHAI DETHARIA vs LALITBHAI KARAMSHIBHAI KAGATHARA

Court: Gujarat High Court
Case type: ELECTION APPLICATION
Decided on: 02-04-2026

<div> C/EA/7/2024 JUDGMENT DATED: 02/04/2026 IN THE HIGH COURT OF GUJARAT AT AHMEDABAD R/ELECTION APPLICATION NO. 7 of 2024 In R/ELECTION PETITION/2/2023 With R/ELECTION PETITION NO. 2 of 2023 With R/ELECTION APPLICATION NO. 5 of 2024 In R/ELECTION PETITION NO. 2 of 2023 With R/ELECTION APPLICATION NO. 6 of 2024 In R/ELECTION PETITION NO. 2 of 2023 FOR APPROVAL AND SIGNATURE: HONOURABLE MR. JUSTICE ILESH J. VORA ========================================================== </div><table><thead><tr><th>Approved for Reporting</th><th>Yes</th><th>No</th></tr></thead><tbody><tr><td></td><td></td><td></td></tr></tbody></table><div> ========================================================== DURLABHJIBHAI HARAKJIBHAI DETHARIA Versus LALITBHAI KARAMSHIBHAI KAGATHARA & ORS. ========================================================== Appearance: MR ND NANAVATY, SR. ADVOCATE WITH MR ROHAN LAVKUMAR WITH MR. NISARG TRIVEDI WITH MR ADITYA DAVE for NANAVATI ASSOCIATES(1375) for the Applicant(s) No. 1 MR HRIDAY BUCH for the Respondent(s) No. 1 MR BHARAT T RAO(697) for the Respondent(s) No. 4 MR DAXAY D PATEL(6633) for the Respondent(s) No. 3 MS MALTI BHARAT RAO(2558) for the Respondent(s) No. 2 ========================================================== </div><table><thead><tr><th>CORAM:</th><th>HONOURABLE MR. JUSTICE ILESH J. VORA</th></tr></thead><tbody></tbody></table><div> Date : 02/04/2026 COMMON ORAL JUDGMENT 1. This application is under Order VII Rule 11 of the Code of Civil Procedure (CPC), seeking dismissal of the Election Petition at the threshold, on the ground that, the Election Petition is barred by law, as it Page 1 of 38 Uploaded by P.S. JOSHI(HC00177) on Thu Apr 02 2026 Downloaded on : Thu Apr 02 16:24:27 IST 2026 C/EA/7/2024 JUDGMENT DATED: 02/04/2026 does not fall within the purview of Section 81 and it fails to disclose triable cause of action. 2. An election petition questioning the validity of the legislative election-2022, seat of 66 – Tankara Assembly Constituency being filed by the election petitioner Lalitbhai Kagathra. The applicant – returned candidate – Durlabhji Detharia had filed his nomination form as a candidate of Bharatiya Janta Party along with the affidavit in Form No.26. During the scrutiny, the election petitioner raised the written objection against the nomination form, inter alia, stating that, the returned candidate had not mentioned proper information and some of the columns of the affidavit left blank or filled by just “tick/dash marking”. After hearing the parties, the Returning Officer by overruling the objections, accepted the nomination form observing that, he did not find any defect in the form and affidavit and merely on the basis of incorrect information, the nomination paper does not require to be rejected. The voting of the election took place on 01.12.2022. The applicant –returned candidate declared as elected on 08.12.2022. He was polled 83,274 votes. The election petitioner, who had lost the election on the platform of the Indian National Congress, was polled 73,018 votes. 3. In the aforesaid facts, an election petition questioning the validity of the election has been preferred, inter alia, praying that, the election of returned candidate be declared void under Section 100(1)(b), 100(1)(d)(i) and (iv) of The Representation of the People Act, 1951 (hereinafter referred to as “R.P. Act”). The grounds raised in the election petition are that, Page 2 of 38 Uploaded by P.S. JOSHI(HC00177) on Thu Apr 02 2026 Downloaded on : Thu Apr 02 16:24:27 IST 2026 C/EA/7/2024 JUDGMENT DATED: 02/04/2026 (i) the returned candidate had suppressed the material information in the nomination papers and affidavit which is in contravention to the notification dated 30.09.2013 of Election Commission of India and specific guidelines, issued by the Apex Court in the case of Public Interest Foundation & Ors. Vs. Union of India (2019 (3) SCC 244) and further in Union of India vs. Association of Democratic Reforms (2002 (5) SCC 294) , (ii) the election is liable to be declared void as the returned candidate had indulged into corrupt practices of undue influence by committing material irregularities in filling of the necessary details in the nomination form as well as in the affidavit (Form No.26), as a result, the election in so far as it concerned a returned candidate, has been materially affected. (iii) since the returned candidate suppressed the relevant information required to be mentioned in the form No.26 affidavit, it amounts to non-compliance with the provisions of Sections 33, 33A and 34 of the R.P. Act, and Rules framed thereunder, rendering his election liable to be declared as void. 4. I will briefly set out the gist of the pleas raised by the election petitioner in election petition to appreciate the nature of controversy. According to say of the election petitioner, the nomination form and affidavit as contemplated suffers from the following defects and discrepancies: Page 3 of 38 Uploaded by P.S. JOSHI(HC00177) on Thu Apr 02 2026 Downloaded on : Thu Apr 02 16:24:27 IST 2026 C/EA/7/2024 JUDGMENT DATED: 02/04/2026 (a) The details of social media accounts are not disclosed and the column no.3 was kept blank (item no.3); (b) In item no.4, last five years income as mentioned in the ITR, was disclosed, but for which financial year, the income represents, is not specified; (c) In item no.5(i), with respect to pendency of criminal proceedings were not ticked and was left blank and the same is not being properly disclosed in accordance with the instructions made in Form No.26; (d) In item no.6(i), with respect to the past conviction in any criminal cases, were being left completely blank and as per instructions, no tick-mark was being done; (e) In item no.7(A) and 7(B), a chart disclosing movable and immovable assets have been shown, but failed to disclose the complete details (non disclosing full details of bank accounts, election expenditure account, details of investments in the shares and debentures, business details, details of personal loans, particulars of vehicles, weight and value of the gold, value of claims/interest, particulars with regard to agricultural land and its market value, particulars with regard to self acquired property, commercial property, residential property, information with regard to liability. (f) In column no.8, 9, 9(A) and 10, were not been filled up as required under the notification and marked as (-), or answered as “Yes” or “No” is not permissible under guidelines of the notification dated 30.09.2013 and being filled up in violation of Section 33(A) of the R.P. Act. (g) In Part-B of the affidavit, wherein the disclosure is contrary to the Page 4 of 38 Uploaded by P.S. JOSHI(HC00177) on Thu Apr 02 2026 Downloaded on : Thu Apr 02 16:24:27 IST 2026 C/EA/7/2024 JUDGMENT DATED: 02/04/2026 disclosure made in Part-A of the affidavit. (h) In column no.11(11), no details being furnished in relation to the higher education. In such circumstances, it is averred in the petition that, the returned candidate has deliberately suppressed the mandatory facts about properties and made a false declaration with regard to the assets which constitutes corrupt practice within meaning of Section 123(2) of the R.P. Act and such deliberate non-disclosure would directly impact the election. The conduct of Election Rules, 1961 expressly requires disclosure of assets, liabilities and source of income and the said suppression and willful concealment is of substantial character and filling up affidavit with blank particulars would render the affidavit nugatory and render the nomination invalid and void and in such circumstances, the election of returned candidate be declared null and void and the election petitioner having secured second highest number of votes may be declared as duly elected candidate. 5. The applicant – returned candidate seeks dismissal of the election petition under Order 7 Rule 11 CPC read with Section 86 of the R.P. Act, inter alia, stating that, the election petition neither reflect any fact or ground in terms of Section 100 and 101 of the R.P. Act, nor does it reflect any cause of action in compliance with Section 83 of the R.P. Act as there is no pleading of material facts in the petition to demonstrate that, by reason of alleged defect pleaded, the nomination form of the applicant- original respondent no.1 (returned candidate’s)was liable to be rejected and there is no averment in the petition as to the manner in which by reason of improper acceptance of form along with the affidavit, the result Page 5 of 38 Uploaded by P.S. JOSHI(HC00177) on Thu Apr 02 2026 Downloaded on : Thu Apr 02 16:24:27 IST 2026 C/EA/7/2024 JUDGMENT DATED: 02/04/2026 of the election has been materially affected. 6. The application is opposed by the election petitioner by filing reply in the form of affidavit, containing the following objections: (i) The application is nothing but a desperate attempt on the part of the returned candidate to prolong the proceedings of the main election petition. (ii) It is denied that the election petition is barred by law and the petition lacks the cause of action. (iii) That, the grounds raised in paragraph-14, the details of which elaborated in paragraph no.10 and relief prayed in paragraph no.18 of election petition clearly fall within the purview of Section 100(1)(d)(i) and (iv), 100(1)(b) and 101(b) of the R.P. Act and on such grounds, whether such relief should be granted is a question of trial which is beyond the scope of Order 7 Rule 11 CPC and Section 86 of the R.P. Act and therefore, the contention of non-compliance of Section 81 of the R.P. Act raised in the application is misconceived. (iv) The election petitioner raised the objection before the returning officer pertaining to the several columns left blanks in the affidavit of Form No.26, rendering it an incomplete affidavit and reliance was placed on the notification dated 13.09.2013 issued by the Election Commission of India to comply with the directions of the Supreme Court issued in the case of Resurgence India vs. Election Commission of India, wherein it is made mandatory for candidates to fill up all columns of Form No.26 Affidavit without leaving any column blank and the blanks in the affidavit is the ground for returning officer to reject the nomination. However, the R.O. accepted the incomplete affidavit and erroneously Page 6 of 38 Uploaded by P.S. JOSHI(HC00177) on Thu Apr 02 2026 Downloaded on : Thu Apr 02 16:24:27 IST 2026 C/EA/7/2024 JUDGMENT DATED: 02/04/2026 rejected the objections raised by the Election Petitioner which clearly amounts to violation of Section 33(A) of the R.P. Act resulting into improper acceptance of the nomination of the returned candidate. The election petitioner has also pleaded in the election petition in relation to the improper acceptance of nomination form on account of material suppression in Form No.26 Affidavit and therefore, at the threshold, the petition cannot be dismissed on this ground and the said issue at the later stage can be dealt with. (v) That, the pleadings of commission of corrupt practice are based on the suppression of assets and liabilities in Form No.26 Affidavit and all the details regarding suppression of material facts which were not mentioned in the affidavit are pleaded and supported by documentary evidence and in this regard, the election petitioner has specifically pleaded that, due to deliberate suppression and false declaration in Form No.26 Affidavit, constitute corrupt practice of ‘undue influence’ within the meaning of Section 123(2) of the R.P. Act and such non-disclosure cerates impediment in the free exercise of the electoral right due to lack of information and awareness. Thus, there is compliance of Section 81 of the Act and law is settled that in a case of false declaration, the court may presume that such declaration impacts the election. (vi) That, the Returning Officer while overruling the objections and accepting the nomination form, observed that, no proofs are produced by the election petitioner in support of the objections and the defect in affidavits termed to be clerical mistakes by wrongly relying on the provision of R.O. Handbook i.e. 6.10.1(iv). (vii) That, the election petition is filed in strict adherence to the provisions of the Act and the Rules framed thereunder and as such, the returned candidate has failed to make out a case of non-compliance of Page 7 of 38 Uploaded by P.S. JOSHI(HC00177) on Thu Apr 02 2026 Downloaded on : Thu Apr 02 16:24:27 IST 2026 C/EA/7/2024 JUDGMENT DATED: 02/04/2026 Section 81 of the R.P. Act and thereby no grounds exist for granting any relief under Order 7 Rule 11 CPC with Section 86 of the R.P. Act. (viii) In view of the aforesaid, it is prayed that, the application may kindly be dismissed with exemplary cost. Submissions: 7. Heard learned Senior Counsel Mr. N.D. Nanavaty assisted by learned counsel Mr. Rohan Lavkumar, Mr. Nisarg Trivedi and Mr. Aditya Dave for Nanavaty Associates, Mr. Hriday Buch, Mr. Bharat T. Rao, Ms. Malti Bharat Rao and Mr. Dakshay D. Patel appearing for the respective parties. 8. Mr. N.D. Nanavaty, learned senior counsel appearing for and on behalf of the applicant-returned candidate, urged the following submissions: (a) That, the election petitioner Lalitbhai Kagathara had filed his nomination as a candidate of the Indian National Congress and has lost the election to the Legislative Assembly Seat of 66 – Tankara for the election held in the year of 2022, by approximately 10,000 votes. The returned candidate – applicant herein was the candidate of Bharatiya Janta Party and was declared as winning candidate with 83,274 votes. It is in this background facts, it is stated that, the election petition proceeds on a set of general, vague and trivial allegations which do not disclose any material cause of action. Section 83(1)(a) of the R.P. Act mandates that the petition shall contain a concise statement of material facts on which the petitioner relies and disclose full particulars of any corrupt practice as contemplated under Section 83(1)(b).In the facts of the present case, on the plain reading of the election petition, the election Page 8 of 38 Uploaded by P.S. JOSHI(HC00177) on Thu Apr 02 2026 Downloaded on : Thu Apr 02 16:24:27 IST 2026 C/EA/7/2024 JUDGMENT DATED: 02/04/2026 petitioner has not given a concise statement of all material facts and particulars on this count. In absence of any pleadings, if the trial proceeds further, it would not be permissible to lead evidence on the allegations of corrupt practice and no amount of evidence can cure the defect or lack in the pleadings. Thus, therefore, the election petition is barred by law and do not disclose the cause of action and in absence of any triable issue, the election petition is required to be dismissed at the threshold. (b) That, by invoking Section 100(1)(b) and Section 100(1)(d)(i) and (iv) of the R.P. Act, the election is challenged, inter alia, alleging that, suppression, concealment and non-disclosure of information as regards to the personal status in relation with the movable and immovable assets, properties as well as liabilities and position, constitutes corrupt practice of undue influence as defined under Section 123(b) of the Act and the result of the election has been materially affected by improper acceptance of nomination. It is in this background facts, it was submitted that, the alleged defects in the affidavit Form No.26 are not of substantial character. (c) the election petitioner made a general allegation about the commission of the corrupt practices and bald averments without any particulars is not sufficient to comply Section 81 of the R.P. Act. (d) Even in case of non-compliance under 100(1)(d)(iv), they are require to be plead how the result of the election materially affected and there is no averment how the alleged deficiencies, incomplete details etc. has been materially affected the result of the election by improper acceptance of the nomination or by non-compliance with the provisions of the R.P. Act and Rules framed thereunder. Page 9 of 38 Uploaded by P.S. JOSHI(HC00177) on Thu Apr 02 2026 Downloaded on : Thu Apr 02 16:24:27 IST 2026 C/EA/7/2024 JUDGMENT DATED: 02/04/2026 (e) Inconsequential or trivial allegations cannot be the basis of setting aside the election of a democratically elected candidate, more particularly; the defects are not of substantial nature. (f) On the aspect of non-disclosing the criminal antecedents, it was submitted that, the column was filled with the marking “not applicable”. It is not the case of the election petitioner that, the criminal cases were pending against the returned candidate and same has not been disclosed and no any particulars being pleaded and therefore, it is the boundant duty of the election petitioner to plead a positive averment of the negative fact, however, same has not been pleaded. (g) On the aspect of non-disclosure of details of the assets and properties and other deficiencies as pointed out, it was submitted that, it is not the case of the election petitioner that, the false declaration was being made in the affidavit and having regard to the instructions of the nomination form, it does not require elaboration on the aspect of loan and personal status etc. and in addition to that, there is no pleading to the effect that, how the failure to disclose the necessary information amount to corrupt practice or improper acceptance of nomination and how it would materially affected the election of the returned candidate. 9. In such circumstances, learned senior counsel Mr. Nanavaty submitted that, on plain reading of the petition, there are no averments of material facts on which the petitioner relies and bare allegations can never be treated as material facts and by no stretch of imagination, provision of Section 100(1)(b) and Section 100(1)(d)(i) and (iv) can be attracted. Thus, therefore, it was submitted that the averments read as a whole in its entirety do not comply with the provision of Section 81 as none of the grounds mentioned and sought to be pressed into service falls Page 10 of 38 Uploaded by P.S. JOSHI(HC00177) on Thu Apr 02 2026 Downloaded on : Thu Apr 02 16:24:27 IST 2026 C/EA/7/2024 JUDGMENT DATED: 02/04/2026 within the purview of Section 100 and in absence of any triable issue, no purpose would be served to proceed with the trial and when the election petitioner is not entitled for any relief, the election petition should be rejected by exercising power under Order 7 Rule 11 CPC read with Section 86 of the R.P. Act. 10. In support of the aforesaid submissions, the counsel relied upon the following decisions: 1) Karim Uddin Barbhuiya v. Aminul Haque Laskar and Ors., 2024 SCC Online SC 509 2) Ajmera Shyam v. Kova Laxmi and ors., 2025 SCC OnLine SC 1723 3) Karam Singh v. Amarjit Singh and Ors., 2025 SCC OnLine SC 2240 4) Udhav Singh v. Madhav Rao Scindia, (1977) 1 SCC 511 5) Hari Shanker Jain v. Sonia Gandhi, (2001) 8 SCC 233 6) Sidik Mahomed Shah v. Mt. Saran, 1929 SCC Online PC 79 7) L. Shivramagowda v. T. M Chandrashekhar, (1999) 1 SCC 666 8) Ram Sukh v. Dinesh Agarwal, (2009) 10 SCC 541 9) Kanimozhi Karunanidhi v. A. Santhana Kumar and Ors., 2023 SCC OnlineSC 573 10) C. P. John v. Babu M. Paliserry, (2014) 10 SCC 547 11) Shambhu Prasad v. Chandradas Mahant, (2012) 11 SCC 390 12) Mangani Lal Mandal v. Bishnu Deo Bhandari, (2012) 3 SCC 314 13) Dasanglu Pul v. Lupalum Kri, 2023 SCC Online SC 1367 14) Mahendra Tulsiram Bhingardive v. Anil Yeshwant Desai, 2024 SCC Online Bom 3303 15) Kameng Dolo v. Atum Welly, (2017) 7 SCC 512 16) Ramesh Kumar Khatri v. Durgesh Pathak, 2025 SCC Online Del 695 17) Mohinder Singh v. Durgesh Kumar and Ors., 2025 SCC Online Del 694 Samar Singh v. Kedar Nath, 1987 (Supp) SCC 663 18) Dhulaji Somaji Thakor v. Gordhanbhai Hathibhai Patel, CRA 271 of 19) 2022 20) Rahul Vasudevbhai Vyas v. Hemang Yogeshbhai Joshi, EP No. 3 of 2024 Page 11 of 38 Uploaded by P.S. JOSHI(HC00177) on Thu Apr 02 2026 Downloaded on : Thu Apr 02 16:24:27 IST 2026 C/EA/7/2024 JUDGMENT DATED: 02/04/2026 11. Opposing the application, the counsel appearing for and on behalf of the election petitioner – respondent no.1 herein, Mr. Hriday Buch made the following submissions: (a) That, the election petition was filed on 16.01.2023 and the application seeking dismissal of the election petition under Order 7 Rule 11 CPC is filed on 17.07.2024 and that too, after framing of the issues which clearly reflects an attempt by the returned candidate to protract and obstruct the trial proceedings with a view to defeating the purpose and effective adjudication of the present election petition and therefore, the application on this count deserves to be dismissed. (b) The election petition is under Section 100(1)(b) as well as under Section 100(1)(d) of the R.P. Act. The returned candidate has breached both these provisions. So far as Section 100(1)(b) is concerned, there is no need to plead that, the result of the election so far as it concerns a returned candidate has been materially affected and therefore, a plaint cannot be rejected in part. In support of this contention, heavy reliance has been placed on the case of Central Bank of India vs.Prabha Jain (2023 0 AIR SC 3574) . So far as petition qua provision under Section 100(1)(d) is concerned, there are sufficient averments made in the petition containing a concise statement of material facts with full particulars. In paras-7, 9, 10 to 10.19, 11, 12 and 13 as well as the grounds mentioned in paras-14 to 14.18 and cause of action mentioned in para-15, would show that, the proper contentions are being raised so as to comply the mandatory provisions of the R.P.Act. Thus, the election petition discloses all material facts and having regard to the peculiar facts of the present case, the hyper technical view as canvassed by the returned candidate, would frustrate the purity of elections and it is the duty of the court to guard against attempts made by the returned Page 12 of 38 Uploaded by P.S. JOSHI(HC00177) on Thu Apr 02 2026 Downloaded on : Thu Apr 02 16:24:27 IST 2026 C/EA/7/2024 JUDGMENT DATED: 02/04/2026 candidate to frustrate the election petition when it related to commission of any corrupt practice and same is require to be proved by leading evidence and therefore, when substantial compliance with provisions of the R.P. Act are being made, the election petition cannot be rejected at threshold on the ground of it being barred by law and absence of cause of action. (c) In the election petition, the court has already framed the issues which clearly indicates that, the contentions now sought to be raised by the returned candidate are already encompassed within the scope of adjudication and the question pertaining to the election materially affected by improper acceptance of nomination and non-compliance with the statutory provisions and any rules or order made thereunder would require a full fledge trial and thereafter, the court can arrive at final conclusion about it and therefore, such an exercise is not permissible at a preliminary stage and cannot be undertaken at the threshold. 12. In such circumstances as referred above, Mr. Hriday Buch, learned counsel submitted that, the election petition discloses all the material facts and particulars relating to suppression of assets, financials and discrepancies crept in the Form No.26 Affidavit have been duly incorporated in the petition and when the election is challenged on the ground that returned candidate’s own nomination was improperly accepted, no such pleading is required that how the election has been materially affected ( 1973 2 SCC 45- Durai Mutthuswami vs. N. Nachiappan & Ors.). Accordingly, it was prayed that, the application may be kindly be dismissed with cost. 13. Mr.Hriday Buch, learned counsel in support of the aforesaid Page 13 of 38 Uploaded by P.S. JOSHI(HC00177) on Thu Apr 02 2026 Downloaded on : Thu Apr 02 16:24:27 IST 2026 C/EA/7/2024 JUDGMENT DATED: 02/04/2026 contentions, relied on the following citations: 1) 2025 (4) SCC 38 - Central Bank of India vs. Prabha Jain 2) Bhim Rao Baswanth Rao Patil vs. K. Madan Mohan Rao and Ors. Reported in 2023 (0) AIR SC 3574 3) V. S. Achuthanandan vs. P. J. Francis & Anr. 1999 (3) SCC 737 4) Ponnalla Lakshmaiah vs. Kommuri Pratap Reddy & Ors. 2012 (7) SCC 788 5) Kimneo Haokip Hangshing vs. Kenn Raikhan & Ors. reported in 2024 SCC OnLine SC 2548 6) Kaushik Narsinhbhai Patel vs. M/S. S.J.R. Prime Corporation Pvt. Ltd. & Ors, Civil Appeal No.8176 of 2022 7) Krishnamoorthi vs. Shivakumar & Ors. 2015 (3) SCC 467. Lok Prahari vs. Union of India & Ors. 2018 (4) SCC 699 8) Rukmini Madegowda vs. The State Election Commission & Ors. 2022 9) SCC OnLine SC 1218 10) Durai Muthuswami vs. N. Nachiappan & Ors.1973 (2) SCC 45 11) Mairembam Prithviraj vs. Pukhrem Sharatchandra Singh 2017 (2) SCC 487 12) Madiraju Venkata Ramana Raju VS. Peddireddigari Ramachandra Reddy & Ors. 2018 (14) SCC 1 13) Ahir Meramanbhai Marakhibhai vs. Pabubha Viramabhai Manek EP/20/2018 - Judgment dated 12.04.2019 14) D. Ramchandran vs. R V Jankiraman & Ors. 1999 (3) SCC 267 15) Ashraf Kokkur vs. K V Abdur Khader & Ors. 2015 (1) SCC 129 16) Kisan Shankar Kathore vs. Arun Dattatray Sawant & Ors. reported in 2014 (14) SCC 162; 14. Mr.Bharat Rao and Mr.Daxay Patel, learned advocates appearing for and on behalf of the respondent nos.2, 3 and 4 who had filed their nomination and lost the election, have by adopting the submissions made by learned counsel Mr.Buch, submitted that the application seeking rejection of the election petition is being filed with a view to delay the trial of the election petition and having regard to the irregularities as pointed out, the issue needs a full-fledged trial and no ground exists for exercising judicial discretion to reject the election petition at the threshold under Order VII Rule 11 CPC. Page 14 of 38 Uploaded by P.S. JOSHI(HC00177) on Thu Apr 02 2026 Downloaded on : Thu Apr 02 16:24:27 IST 2026 C/EA/7/2024 JUDGMENT DATED: 02/04/2026 15. Before adverting to the rival contentions of the parties, it will be apposite to have a look at the relevant statutory provisions and the settled position of law propounded by the Supreme Court in its various judgments: Statutory provisions of the R.P. Act: (a) Section 33 authorized the candidate to fill up nomination paper and how to present it to the Returning Officer. Section 33(A) is pertaining to the right to information which says that, a candidate shall furnish the information in relation to the criminal cases registered against him and particulars of conviction thereof. Section 36(4) says that, the R.O. shall not reject any nomination papers on the ground of any defect which is not of substantial character. Rule 4(a) of The Conduct of Elections Rules, 1961, mandates that, the candidate or his proposer, as the case may be, shall at the time of delivering to the Returning Officer, the nomination paper under sub-section 1 of Section 33 of the Act, also deliver to him an affidavit sworn by the candidate before the Magistrate of First Class or a Notary in Form No.26. (b) Section 80 of the R.P. Act provides that no election shall be called in question except by an election petition presented in accordance with the provisions of Part VI. Section 80(A) provides that, the High Court having jurisdiction to try the election petition. Section 81 provides that, an election petition may be presented on Page 15 of 38 Uploaded by P.S. JOSHI(HC00177) on Thu Apr 02 2026 Downloaded on : Thu Apr 02 16:24:27 IST 2026 C/EA/7/2024 JUDGMENT DATED: 02/04/2026 one or more of grounds specified in sub-section 1 of Section 100 and Section 101 of the Act. Section 83 mandates that, an election petition shall contain a concise statement of the material facts on which the petitioner relies and shall set forth full particulars of any corrupt practice that the petitioner alleges. Section 86 authorized the High Court to dismiss the petition which does not comply with the provisions of Section 81 or 82 or Section 117. Section 87 says that, every election petition shall be tried in accordance with the procedure applicable under the CPC to the trial of suits and the provisions of Indian Evidence Act be deemed to be applied. Section 100 provides grounds for declaring election to be void. Section 101(b) says that, any corrupt practice has been committed by a returned candidate, the High Court shall declare the election to be void, whereas, Section 101(d) provides that, the result of election, in so far as it concerns, the returned candidate has been materially affected – (i) by the improper acceptance or any nomination, (ii) by any non-compliance with the provision 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 returned candidate to be void. (c) Section 123 defines the expression “corrupt practices”. It says that, the following shall be deemed to be corrupt practices for the purpose of this Act: (1) xxxxxxx (2) Undue influence, that is to say, any direct or indirect interference or attempt to interference on the part of the candidate Page 16 of 38 Uploaded by P.S. JOSHI(HC00177) on Thu Apr 02 2026 Downloaded on : Thu Apr 02 16:24:27 IST 2026 C/EA/7/2024 JUDGMENT DATED: 02/04/2026 or his agent or of any other person with free exercise of any electoral right. Settled position of law: (A) In case of Karimuddin Barbhuiya Vs. Aminul Haque Laskar (2024 SCC Online 509 ) , the Supreme Court in Paras-12, 13, 14 and 15 reiterated the settled legal position with respect to right to contest the election and to question the legality of the election by way of election petition and non-compliance of Section 83(1)(A) of the R.P. Act and rejection of election petition under Order 7 Rule 11 CPC has been discussed at length.Paras-12, 13, 14, and 15 read thus: “12. At the outset, it may be noted that as per the well settled legal position, right to contest election or to question the election by means of an Election Petition is neither common law nor fundamental right. It is a statutory right governed by the statutory provisions of the RP Act. Outside the statutory provisions, there is no right to dispute an election. The RP Act is a complete and self-contained code within which any rights claimed in relation to an election or an election dispute must be found. The provisions of Civil Procedure Code are applicable to the extent as permissible under Section 87 of the RP Act. 13. It hardly needs to be reiterated that in an Election Petition, pleadings have to be precise, specific and unambiguous, and if the Election Petition does not disclose a cause of action, it is liable to be dismissed in limine. It may also be noted that the cause of action in questioning the validity of election must relate to the grounds specified in Section 100 of the RP Act. As held in Bhagwati Prasad Dixit 'Ghorewala' v. Rajeev Gandhi and in Dhartipakar Madan Lal Agarwal v. Rajiv Gandhi, if the allegations contained in the petition do not set out the grounds as contemplated by Section 100 and do not conform to the requirement of Section 81 and 83 of the Act, the pleadings are liable to be struck off and the Election Petition is liable to be rejected under Order VII, Rule 11 CPC. 14. A beneficial reference of the decision in case of Laxmi Narayan Nayak Vs. Ramratan Chaturvedi be also made, wherein this Court upon review of the earlier decisions, laid down following principles applicable to election cases involving corrupt practices:- Page 17 of 38 Uploaded by P.S. JOSHI(HC00177) on Thu Apr 02 2026 Downloaded on : Thu Apr 02 16:24:27 IST 2026 C/EA/7/2024 JUDGMENT DATED: 02/04/2026 “5. This Court in a catena of decisions has laid down the principles as to the nature of pleadings in election cases, the sum and substance of which being: (1) The pleadings of the election petitioner in his petition should be absolutely precise and clear containing all necessary details and particulars as required by law vide Dharti- pakar Madan Lal Agarwal v. Rajiv Gandhi, [1987] (Supp.) SCC 93 and Kona Prabhakara Rao v. M. Seshagiri Rao & Anr., [1982] 1 SCC 442. (2) The allegations in the election petition should not be vague, general in nature or lack of materials or frivolous or vexatious because the Court is empowered at any stage of the proceedings to strike down or delete pleadings which are suffering from such vices as not raising any triable issue vide Manphul Singh v. Surinder Singh, [1974] 1 SCR 52; Kona Prabhakara Rao v. M. Seshagiri Rao & Anr., [1982] 1 SCC 442 and Dhartipakar Madan Lal Agarwal v. Rajiv Gandhi, [1987] (Supp.) SCC 93. (3) The evidence adduced in support of the pleadings should be of such nature leading to an irresistible conclusion or unimpeachable result that the allegations made, have been committed rendering the election void under Section 100 vide Jumuna Prasad Mukhariya & Others v. Lachhi Ram & Others, [1955] 1 SCR 608 and Rahim Khan v. Khurshid Ahmed and Oth- ers, [1974] 2 SCC 660. (4) The evidence produced before the Court in support of the pleadings must be clear, cogent, satisfactory, credible and positive and also should stand the test of strict and scrupulous scrutiny vide Ram Sharan Yadav v. Thakur Muneshwar Nath Singh and Others, [1984] 4 SCC 649. (5) It is unsafe in an election case to accept oral evidence at its face value without looking for assurances for some surer circumstances or unimpeachable documents vide Rahim Khan v. Khurshid Ahmed & Ors., [1975] 1 SCR 643; M. Narayana Rao v. G. Venkata Reddy & Others, [1977] 1 SCR 490; Lakshmi Raman Acharya v. Chandan Singh & Ors., [1977] 2 SCR 412 and Ramji Prasad Singh v. Ram BilasJha and Others, [1977] 1 SCC 260. (6). The onus of proof of the allegations made in the election petition is undoubtedly on the person who assails an elec- tion which has been concluded vide Rahim Khan v. Khurshid Ahmed and Others, [1975] 1 SCR 643; Mohan Singh v. Bhanwar- lal & Others, [1964] 5 SCR 12 and Ramji Prasad Singh v. Ram Bilas Jha and Others, [1977] 1 SCC 260.” 16. In case of Kanimozhi Karunanidhi Vs. A. Santhana Kumar ( 2023 Page 18 of 38 Uploaded by P.S. JOSHI(HC00177) on Thu Apr 02 2026 Downloaded on : Thu Apr 02 16:24:27 IST 2026 C/EA/7/2024 JUDGMENT DATED: 02/04/2026 SCC Online SC 573) , the Supreme Court has elaborately discussed with regard to the non-compliance of requirement of Section 83(a) of the R.P. Act and under what circumstances, the election petition can be rejected by invoking Order 7 Rule 11 CPC. Para-28 of the said decision reads thus: </div><table><thead><tr><th>“28.</th><th></th><th>The legal position enunciated in afore-stated cases may be</th><th></th></tr></thead><tbody><tr><td>summed up as under:-</td><td></td><td></td><td></td></tr></tbody></table><table><thead><tr><th>i. Section 83(1)(a) of RP Act, 1951 mandates that an Election petition</th><th></th></tr></thead><tbody><tr><td>shall contain a concise statement of material facts on which the</td><td></td></tr><tr><td>petitioner relies. If material facts are not stated in an Election petition,</td><td></td></tr><tr><td>the same is liable to be dismissed on that ground alone, as the case</td><td></td></tr><tr><td>would be covered by Clause (a) of Rule 11 of Order 7 of the Code.</td><td></td></tr></tbody></table><table><thead><tr><th>ii. The material facts must be such facts as would afford a basis for the</th><th></th></tr></thead><tbody><tr><td>allegations made in the petition and would constitute the cause of</td><td></td></tr><tr><td>action, that is every fact which it would be necessary for the</td><td></td></tr><tr><td>plaintiff/petitioner to prove, if traversed in order to support his right to</td><td></td></tr><tr><td>the judgement of court. Omission of a single material fact would lead</td><td></td></tr><tr><td>to an incomplete cause of action and the statement of plaint would</td><td></td></tr><tr><td>become bad.</td><td></td></tr></tbody></table><table><thead><tr><th>iii. Material facts mean the entire bundle of facts which would</th><th></th></tr></thead><tbody><tr><td>constitute a complete cause of action. Material facts would include</td><td></td></tr><tr><td>positive statement of facts as also positive averment of a negative fact,</td><td></td></tr><tr><td>if necessary. iv. In order to get an election declared as void under</td><td></td></tr><tr><td>Section 100(1)(d)(iv) of the RP Act, the Election petitioner must aver</td><td></td></tr><tr><td>that on account of non-compliance with the provisions of the</td><td></td></tr><tr><td>Constitution or of the Act or any rules or orders made under the Act,</td><td></td></tr><tr><td>the result of the election, in so far as it concerned the returned</td><td></td></tr><tr><td>candidate, was materially affected.</td><td></td></tr></tbody></table><table><thead><tr><th>v. The Election petition is a serious matter and it cannot be treated</th><th></th></tr></thead><tbody><tr><td>lightly or in a fanciful manner nor is it given to a person who uses it as</td><td></td></tr><tr><td>a handle for vexatious purpose.</td><td></td></tr></tbody></table><div> vi. An Election petition can be summarily dismissed on the omission of a single material fact leading to an incomplete cause of action, or omission to contain a concise statement of material facts on which the Page 19 of 38 Uploaded by P.S. JOSHI(HC00177) on Thu Apr 02 2026 Downloaded on : Thu Apr 02 16:24:27 IST 2026 C/EA/7/2024 JUDGMENT DATED: 02/04/2026 </div><table><thead><tr><th>petitioner relies for establishing a cause of action, in exercise of the</th><th></th></tr></thead><tbody><tr><td>powers under Clause (a) of Rule 11 of Order VII CPC read with the</td><td></td></tr><tr><td>mandatory requirements enjoined by Section 83 of the RP Act.</td><td>”</td></tr></tbody></table><div> 17 . Having regard to the peculiar facts and circumstances of the case, the issue falls for my our consideration as to whether pleadings of the election petition discloses any cause of action and raised tribal issue ? 18. In the application, filed under Order VII Rule 11 of the CPC, the returned candidate raised the contentions that the election petition lacks in material fact constituting the cause of action as required under the R.P. Act and the petition does not fulfill the mandatory requirement of the law, as it has not contained a concise statement of material fact on which the election petitioner relies and therefore, does not disclose the tribal issue or cause of action. The alleged grounds as contained in the petition do not met out the basic requirement which could constitute the cause of action, as there is no pleading with full particulars how the improper acceptance of nomination or non-compliance with the provisions have materially affected the election and the alleged technical discrepancies pointed out are not substantially in nature so as to extract Section 100 (1)(b)and 100(1)(d)(i) and (iv) of the R.P. Act and therefore, the petition suffers from non-compliance of provisions contained under Section 83(1)(b) of the R.P. Act. 19. It is settled position of law that the power of Order VII Rule 11 CPC can be used in the election petition filed under the R.P. Act. In Azhar Hussain Vs. Rajiv Gandhi, (AIR 1986 1253), the Apex Court held and observed that since CPC is applicable, the Court trying the election petition can act in exercise of the powers of the Court including Order VI Rule 16 and Order VII Rule 11. The rules say that the plaint shall be Page 20 of 38 Uploaded by P.S. JOSHI(HC00177) on Thu Apr 02 2026 Downloaded on : Thu Apr 02 16:24:27 IST 2026 C/EA/7/2024 JUDGMENT DATED: 02/04/2026 rejected where it does not disclose the cause of action or where the suit appears from the statement of the plaint to be barred by any law. In T. Arivandandam Vs. T.V. Satyapal (AIR 77 Supreme Court 2421) , the Supreme Court while considering the provisions of Order VII Rule 11, held that if on a meaningful, not formal, reading of the plaint it is manifestly vexatious and meritless, in the sense of not disclosing of clear right to sue, the Court should exercise its powers under Order VII, taking care to see that the ground mentioned therein is fulfilled and if clever drafting has created the illusion of a cause of action, nip it in the bud at the first hearing of the examining the party searchingly under Order X CPC. In the other words, if the petition fails to disclose the cause of action or barred by law, the court has no option but to reject the plaint as the law would not permit the plaintiff to unnecessarily protract the proceedings (Dahiben Vs. Arvindbhai Kalyanji (2020 Supreme Court Online 563) ). 20. In the facts of the present case, the nomination form along with the affidavit in Form No.26, as mandated under Sections 33 and 33Aof the R.P. Act and Rule 4A of the Conduct of Election Rules, 1961 was being filed by the applicant – returned candidate for the Legislative Election, 2022, Seat of 66 – Tankara Assembly Constituency, State of Gujarat. The election petitioner, who had lost the election had also filed his candidature on the Indian Congress Platform. The other three unsuccessful candidates viz. Chhani Musabhai Abrahambhai, Shaileshbhai Parmar, and Sanjay Jayantilal Bhatasana (Patel), had contested the election and they have been joined as respondent in the election petition. In order to appreciate the contentions of the rival parties, the relevant provisions as referred being reproduced herein: Page 21 of 38 Uploaded by P.S. JOSHI(HC00177) on Thu Apr 02 2026 Downloaded on : Thu Apr 02 16:24:27 IST 2026 C/EA/7/2024 JUDGMENT DATED: 02/04/2026 21. The election challenge on the ground of it being void under Sections 100(1)(b) and 100 (1) (i) and (iv) of the RP Act. 22. The first contention raised is that, return candidate indulged into corrupt practice by not disclosing material information as mandated under the R.P Act and Rules thereunder. In order to prove allegation under Section 100(1)(b) of the Corrupt Practice, it is necessary to plead that what the corrupt practice being committed by the return candidate and how the undue influence has directly or indirectly interfered with the pre- exercise of an electoral right. Upon meaningful reading of the plaint, it appears that, except legal provision and defects mentioned in the affidavit form 26, nothing being alleged that how the suppression of the information in the affidavit amounted to “corrupt practices” as defined under Section 123(b) of the R.P. Act. 23. The object underlying the provision relating to corrupt precise was explained by the Supreme Court in Patang Rao Kadam Vs. Prithviraj Sayaji Rao Yadad 2001 SC 1121 , which reads thus: “Fair and free election are essential requisites to maintain the purely of election and to sustain the faith of the people in election itself in a democratic setup clean, efficient and benevolent administration are the essential features of good governance, which in turn depends upon persons of competence and good character.” 24. In the facts of the present case, 123(2) of the RP Act is relevant to refer, which says that, the “undue influence” that is to say, any direct or indirect interference or attempt to interference on the part of the candidate or his agent or of any other person with the free exercise of any electoral right. Page 22 of 38 Uploaded by P.S. JOSHI(HC00177) on Thu Apr 02 2026 Downloaded on : Thu Apr 02 16:24:27 IST 2026 C/EA/7/2024 JUDGMENT DATED: 02/04/2026 25. It is in this context, the election petitioner has alleged that, the return candidate in his affidavit filed along with nomination paper has suppressed the necessary information, which amounted to corrupt practice of undue influence as it deprived the voters to make an informed and advised choice, as a consequence of which, it would come within the compartment of direct or indirect interference. The return candidate alleged that, the election petitioner has not pleaded material facts and truthful material of corrupt practice as required under Section 83(1)(a), and how the election of the return candidate has been materially affected and the alleged discrepancies are not substantial in nature. 26. In order to deal with the issue, it is necessary to examine the discrepancies as pointed out by the election petitioner and required to be examined whether the return candidate made substantial compliance by disclosing necessary information in the nomination form along with the affidavit. (a) Non-mentioning of the Financial Year in the income tax details. Upon reading the affidavit, it appears that, the last 5 years amount as mandate having been furnished. However, there is no requirement to furnish the corresponding against the amount being mentioned. Thus, this cannot be termed to be a breached of the provision Act and Rules thereunder. (b) Did not have mark tick, in the column of declaration of pending criminal proceedings. It appears that, instead of tick mark, the endorsement was made that, “not applicable”. This is not the case that, at relevant time criminal case is pending against the petitioner or he has Page 23 of 38 Uploaded by P.S. JOSHI(HC00177) on Thu Apr 02 2026 Downloaded on : Thu Apr 02 16:24:27 IST 2026 C/EA/7/2024 JUDGMENT DATED: 02/04/2026 been convicted by the competent court. Thus, by endorsing not applicable, would mean that, no criminal case is pending against the return candidate. The substance of filling of the column required to be appreciated. (c) Failed to provide details of movable properties. In the column of movable properties, the details have been furnished but bank names having not been disclosed. It is not the petitioner’s case that, the movable properties having been not disclosed. (d) In the column of investment details, the mark has been written “NIL” and allegation to the effect that, the details of partnership has been suppressed. On careful examination of column no. 3, it claimed details of companies, mutual funds, bonds, debentures and other deposits. Thus, it appears that the details of partnership does not require to disclose. (e) Non-disclosure of details of the loans advanced by returned candidate and his wife or HUF. The necessary details having been furnished but there is no requirement of elaboration of persons of whom the loan being availed. (f) Non-disclosure of Toyoto Innova Crysta and weight of the Gold. In the column, the details of Gold possessed by the returned candidate and his family members being disclosed and so far as car is concerned, the same is of partnership firm. (g) Details of assets having not been fully disclosed. In the form, it shows that the details of immovable properties having been disclosed with its survey number and name of the village etc. with the valuation Page 24 of 38 Uploaded by P.S. JOSHI(HC00177) on Thu Apr 02 2026 Downloaded on : Thu Apr 02 16:24:27 IST 2026 C/EA/7/2024 JUDGMENT DATED: 02/04/2026 also. However, the details of sale deeds having not been disclosed. (h) In the column of liabilities, the details have been furnished. (i) In the column of educational qualification – it was disclosed by the returned candidate that he has educational qualification is SSC Pass. In the column of higher education, it was kept blank. However, fact remains that there is no allegation to the effect that, despite of his graduation or post graduation, the information being not furnished. In other words, the th returned candidate studied up to 10 standard. 27. On the aspect of undue influence, as defined under Section 123(2), if the returned candidate in his affidavit suppressed the details of criminal antecedents, assets, liabilities and educational qualification, and despite of this, the nomination papers being accepted by the Returning Officer, then, it amounts to corrupt practice of undue influence. In this regard, it is profitable to refer few judgments of the Supreme Court on this aspect. 28. In the case of Union of India Vs. Asstn. for Democratic Reforms (2002 (5) SCC 294) , it was held that voter has fundamental rights to information about the contesting candidates. Pursuant to the judgment, Section 33A was inserted in the R.P. Act providing for right to additional information with respect to pending criminal cases and conviction thereof. In this regard, the Election Commission of India issued a press note on 28.06.2002 whereby there was a reference to the judgment of Union of India Vs. Asstn. for Democratic Reforms (supra), in which it was held that information on five aspects has to be provided to the voters namely: Page 25 of 38 Uploaded by P.S. JOSHI(HC00177) on Thu Apr 02 2026 Downloaded on : Thu Apr 02 16:24:27 IST 2026 C/EA/7/2024 JUDGMENT DATED: 02/04/2026 (i) whether the candidate is convicted / acquitted / discharge of any criminal offence in the past – if any, whether he is punished with imprisonment or fine, (ii) Prior to 6 months of filing of nomination, whether the candidate is accused in any pending case and in which charge is framed or cognizance is taken by the court of law. (iii) The assets (immovable, movable, bank balance etc.,) of a candidate and of his spouse and that of dependants. (iv) Liabilities if any, particularly there are any over dues of any financial institution or government dues, (v) the educational qualification of the candidate. 29. So far as ground declaring election to be void on the allegation of corrupt practice is concerned, upon meaningful reading of the petition, I am of the prima-facie view that, the returned candidate had substantially disclosed the information with regard to pendency of criminal cases, assets, liabilities and educational qualifications. So far as other discrepancies pointed out are not of a substantial character amounting to corrupt practice of undue influence as defined under Section 123(2). The statutory provisions Section 36(4) of the R.P. Act provides that, the Returning Officer shall not reject any nomination paper on the ground of any defect which is not of a substantial character. I also do not found any pleadings to the effect that how the alleged discrepancies as pointed out, it affect directly or indirectly interference or attempt to interference with the free exercise of any electoral right. It Page 26 of 38 Uploaded by P.S. JOSHI(HC00177) on Thu Apr 02 2026 Downloaded on : Thu Apr 02 16:24:27 IST 2026 C/EA/7/2024 JUDGMENT DATED: 02/04/2026 appears that, the election petitioner has invoked Section 100(1)(b) simplicitor alleging that, the non-disclosure or suppression amount to corrupt practice. It is settled position of law that there must be disclosure of only material information. Recently, Supreme court in the case of Shri Karikho Kri (2024) SCR 394 , held and observed that, non- disclosure of each and every assets owned by the candidate would not amount to a defect, much less defect of substantial characters. In another case, the Supreme Court in the case of Ajmera Shyam Vs. Kova Laxmi (2025) SCC on-line 1723, it was observed that, the Court must keep in mind that declaring an election void, solely for non-disclosure of assets, if it is lacks substantially, could undermine the validity of the popular mandate. To nullify the choice of the people on a minor technicality and insignificant non-disclosure of asses by the elected candidate, would have serious repercussions on the democratic process. Thus, while the court plays a vital role in upholding the rule of law, utmost care must have been taken to ensure that the election results are not invalidated based on subjective interpretations and minor or technical irregularities that do not substantially impinge on the law, since unwarranted interference with the electoral process and over tuning election results can erode public trust in democratic institution. It was further observed that nullifying the election results and over turning the people’s verdict through cold, clinical analysis and tools should be avoided, unless the electoral process has been vitiated by gross irregularities, that undermine electoral integrity. Court room’s intervention should only when there are clear and blatant violations of the law that threatened fairness, legality and constitutional principles. 30. In light of the settled legal position and applying the same to the Page 27 of 38 Uploaded by P.S. JOSHI(HC00177) on Thu Apr 02 2026 Downloaded on : Thu Apr 02 16:24:27 IST 2026 C/EA/7/2024 JUDGMENT DATED: 02/04/2026 facts of the present case, it emerges from the record that, the necessary information were being furnished and supplied in the affidavit form no. 26 and there was substantial compliance being made by the returned candidate. On plain reading of the petition, it appears that, nothing being pleaded that there was false disclosure of the assets or the candidate had not at all disclosed the particulars of the assets and other things like liabilities, educational qualifications and pendency of criminal cases. There is no pleading to the effect that despite of pendency of criminal cases, the particulars were not being disclosed and/or furnished in the affidavit. On the aspect of educational qualification, nothing being pleaded about higher qualification of the returned candidate. In such circumstances, the alleged discrepancies and defects pointed out in the election petition are not of substantial character and alleged deficiency whatever pointed out would not be amounted or constituted as “corrupt practice”, that is to say, any direct or indirect interference with the free exercise of electoral right and therefore, the basic and primary facts attracting the provisions of Section 100(1)(b), having not been pleaded in the petition. 31. Reverting to the present application, filed under Order VII Rule 11(a) and (d), seeking rejection of election petition for non-disclosure of cause of action and having regard to the pleadings of the petition, is to be barred by law as there is non-compliance of Section 81 of the R.P. Act. The election petitioner by invoking Section 100(1)(d)(i) and (iv), pleaded that the election of the returned candidate to be declared void as there was improper acceptance of nomination and non-compliance with the provisions of the R.P. Act and Rules thereunder which has materially affected the result of the election. Page 28 of 38 Uploaded by P.S. JOSHI(HC00177) on Thu Apr 02 2026 Downloaded on : Thu Apr 02 16:24:27 IST 2026 C/EA/7/2024 JUDGMENT DATED: 02/04/2026 32. The specific contentions being raised in the application filed under Order 7 Rule 11 CPC that Section 83A of the R.P. Act mandates that petition shall contain a concise statement of material facts on which the petitioner relies and must set forth full particulars of the corrupt practice and in the present case, there is no pleading in the petition that by virtue of the alleged improper acceptance of the nomination or non-compliance with the provisions, the election of the returned candidate – applicant has been materially affected and in absence of such pleading, the election petition required to be dismissed at the threshold. 33. Before adverting to the submissions, I will refer the few pronouncement of the Supreme Court on the issue of what is meaning of “material facts” require to be pleaded in the petition and when election is declared to be void by invocation of Section 100(1)(d).: (a) In Ramshukh Vs. Dinesh Agrawal (2009 (10) SCC 541 ), it has been held by the Supreme Court that where the election is challenged on any of the grounds under Section 100(1)(d), it must be specifically averred and pleaded in the petition that the election of the returned candidate has been materially affected, apart from proving that fact in the trial in the petition. In absence of such pleading in the petition, the petitioner cannot be permitted to adduce evidence to the effect that the election of the returned candidate was materially affected. (b) In Magnilal Mandal Vs. Bishnu Deo Bhanderi (2012 (3) SCJ 884), it has been held that the suppression of information or furnishing the wrong information in the affidavit with the nomination paper is not a specific ground for challenging election under Section Page 29 of 38 Uploaded by P.S. JOSHI(HC00177) on Thu Apr 02 2026 Downloaded on : Thu Apr 02 16:24:27 IST 2026 C/EA/7/2024 JUDGMENT DATED: 02/04/2026 100(1)(d)(iv), unless it is pleaded that such suppression of the information materially affected the result of the election of returned candidate. (c) In Kanimozhi Karunanidhi v. A. Santhana Kumar and Ors., 2023 SCC OnlineSC 573 , the Supreme Court after referring the provisions of the R.P. Act, observed that it is necessary for the election petitioner to aver specifically in what manner the result of the election in so far as it concerns the returned candidate was materially affected due to omission on the part of the returning officer. (d) In Karim Uddin Barbhuya Vs. Aminul Haque Laskar (2024 SCC Online 509) , the Supreme Court held in Paras-22 to 24 as under: “22. So far as the ground contained in clause (d) of Section 100(1) of the Act, with regard to improper acceptance of the nomination of the Appellant is concerned, there is not a single averment made in the Election Petition as to how the result of the election, in so far as the appellant was concerned, was materially affected by improper acceptance of his nomination, so as to constitute a cause of action under Section 100(1)(d)(i) of the Act. Though it is true that the Election Petitioner is not required to state as to how corrupt practice had materially affected the result of the election, nonetheless it is mandatory to state when the clause (d)(i) of Section 100(1) is invoked as to how the result of election was materially affected by improper acceptance of the nomination form of the Appellant. 23. As transpiring from the Election Petition, the respondent no. 1 himself had not raised any objection in writing against the nomination filed by the Appellant, at the time of scrutiny made by the Returning Officer under Section 36 of the Act. According to him, he had raised oral objection with regard to the education qualification stated by the Appellant in the Affidavit in Form-26. If he could make oral objection, Page 30 of 38 Uploaded by P.S. JOSHI(HC00177) on Thu Apr 02 2026 Downloaded on : Thu Apr 02 16:24:27 IST 2026 C/EA/7/2024 JUDGMENT DATED: 02/04/2026 he could as well, have made objection in writing against the acceptance of nomination of the Appellant, and in that case the Returning Officer would have decided his objection under sub-section (2) of Section 36, after holding a summary inquiry. Even if it is accepted that he had raised an oral objection with regard to the educational qualification of the Appellant before the Returning Officer at the time of scrutiny, the respondent no. 1 has failed to make averment in the Election Petition as to how Appellant's nomination was liable to be rejected by the Returning Officer on the grounds mentioned in Section 36(2) of the Act, so as to make his case fall under clause (d) (i) of Section 100(1) that there was improper acceptance of the nomination of the Appellant. The non-mentioning of the particulars as to how such improper acceptance of nomination had materially affected the result of the election, is apparent on the face of the Election Petition. 24. As stated earlier, in Election Petition, the pleadings have to be precise, specific and unambiguous. If the allegations contained in Election Petition do not set out grounds as contemplated in Section 100 and do not conform to the requirement of Section 81 and 83 of the Act, the Election Petition is liable to be rejected under Order VII, Rule 11 of CPC. An omission of a single material fact leading to an incomplete cause of action or omission to contain a concise statement of material facts on which the Election petitioner relies for establishing a cause of action, would entail rejection of Election Petition under Order VII Rule 11 read with Section 83 and 87 of the RP Act.” (e) In Harishankar Jain Vs. Soniya Gandhi (AIR 2001 Supreme Court 3689 ), while interpreting the expression “material fact”, the Supreme Court held that Section 83 of the R.P. Act provides that the election petition must contain a concise statement of material fact on which the petitioner relies and further he must also set forth full particulars of any corrupt practice. This section is mandatory as material facts shows that the fact necessary to formulate a complete cause of Page 31 of 38 Uploaded by P.S. JOSHI(HC00177) on Thu Apr 02 2026 Downloaded on : Thu Apr 02 16:24:27 IST 2026 C/EA/7/2024 JUDGMENT DATED: 02/04/2026 action must be stated. Omission of a single material fact leads to an incomplete cause of action and the statement of claim becomes bad. The function of particulars is to present as full picture of the cause of action which such information in detail so as to make the opposite party understand the case, he will have to meet. (f) In Virendranath Gautam Vs. Satpal (Laws (Supreme Court) 2006 -12-77; Jitu Patnaik Vs. Sanatan Mohakud (AIR 2012 Supreme Court 913) , the Supreme Court held that “material” means fundamental, vital, basic, cardinal, central, crucial, decisive, essential, pivotal, indispensable, elementary, or primary. Thus, it was held that the expression “material facts” would mean those facts upon which the party relies for his claim or defence. What particulars are material facts would depend upon the facts of each case and no rule of universal application can be laid down. However, it is essential that all the basic and material facts which must be proved at the trial by the party to establish existence of the cause of action or defence are material facts and must be stated in the pleading by the party. 34. Reverting to the facts of the present case and upon meaningful reading of the petition, in my view, the averments made in the election petition are simple production of statutory provision of law and narration of the alleged discrepancies found in the affidavit in Form No.26. In the preceding paras-25 to 29 of this judgment, it has been held and observed that the returned candidate – applicant herein on the aspect of criminal antecedents, assets, liabilities, and education qualification, made substantial disclosure in affidavit of Form No.26 and whatever the deficiencies and discrepancies pointed out and mentioned in the petition Page 32 of 38 Uploaded by P.S. JOSHI(HC00177) on Thu Apr 02 2026 Downloaded on : Thu Apr 02 16:24:27 IST 2026 C/EA/7/2024 JUDGMENT DATED: 02/04/2026 are not of substantial character. So far as non-compliance of Section 83 of the R.P. Act is concerned, having regard to the facts of the case and upon reading of the petition, it appears that, except the narration of the statutory provisions of the R.P. Act and the defects found in the affidavit of Form No.26, nothing being pleaded in the petition to demonstrate that improper acceptance of the nomination paper has resulted in materially affecting the result of the election and on this aspect, I am of the view that, the petition does not disclose any cause of action. In other words, the petition lacks in “material facts”, constituting the cause of action and the pleadings are not in conformity with the Sections 83 and 86 of the R.P. Act. 35. It is the contention of the election petitioner that the petition qua the provisions of Section 100(1)(b), the petition set forth specific pleadings that non-disclosure as pointed out amounts to corrupt practice. I do not find any substance in the contention about the maintainability of the petition under Section 100(1)(b) as on this aspect, I have assigned sufficient reasons in the preceding paragraphs of this judgment. 36. It is the next contention of the election petitioner that the requirement to plead and prove that the election result was materially affected by improper acceptance of nomination arise only when the election is challenged on the ground of improper acceptance of a nomination other than of returned candidate. In support of this contention, heavy reliance has been placed on the case of Durai Muththuswamy Vs. N. Nachippan and others (1973 (2) SCC 45); Mairemban Prithviraj Vs. Pukhrem Saratchandra Singh (2017 (2) SCC 487). In the case of Mairemban, the Supreme Court while referring the Page 33 of 38 Uploaded by P.S. JOSHI(HC00177) on Thu Apr 02 2026 Downloaded on : Thu Apr 02 16:24:27 IST 2026 C/EA/7/2024 JUDGMENT DATED: 02/04/2026 case of Durai Swamy held and observed that cases in which they were only two contesting candidates, in such event, it is not necessary to allege that the result of the election in so far as it concerns the returned candidate has been materially affected. Paras-22, 23 and 26 are relevant to refer which reads as under: “22. The facts, in brief, of the case of Durai Muthuswami are that the Petitioner in the election petition contested in the election to the Tamil Nadu Legislative Assembly from Sankarapuram constituency. He challenged the election of the First Respondent on the grounds of improper acceptance of nomination of the returned candidate, rejection of 101 postal ballot papers, ineligible persons permitted to vote, voting in the name of dead persons and double voting. The High Court dismissed the election petition by holding that the Petitioner failed to allege and prove that the result of the election was materially affected by the improper acceptance of the nomination of the First Respondent as required by Section 100 (1) (d) of the Act. The Civil Appeal filed by the Petitioner therein was allowed by this Court in Durai Muthuswami (supra) in which it was held as follows: “3. Before dealing with the question whether the learned Judge was right in holding that he could not go into the question whether the 1st respondent's nomination has been improperly accepted because there was no allegation in the election petition that the election had been materially affected as a result of such improper acceptance, we may look into the relevant provisions of law. Under Section 81 of the Representation of the People Act, 1951 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 . It is not necessary to refer to the rest of the section. Under Section 83(1) (a) , insofar as it is necessary for the purpose of this case, an election petition shall contain a concise statement of the material facts on which the petitioner relies. Under Section 100(1) if the High Court is of opinion— (a) that on the date of his election a returned candidate was not qualified, or was disqualified, to be chosen to fill the seat under the Constitution or this Act …. (b)-(c) * Page 34 of 38 Uploaded by P.S. JOSHI(HC00177) on Thu Apr 02 2026 Downloaded on : Thu Apr 02 16:24:27 IST 2026 C/EA/7/2024 JUDGMENT DATED: 02/04/2026 (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)-(iii) * the High Court shall declare the election of the returned candidate to be void. Therefore, what Section 100 requires is that the High Court before it declares the election of a returned candidate is void should be of opinion that the result of the election insofar as it concerns a returned candidate has been materially affected by the improper acceptance of any nomination. Under Section 83 all that was necessary was a concise statement of the material facts on which the petitioner relies. That the appellant in this case has done. He has also stated that the election is void because of the improper acceptance of the 1st respondent's nomination and the facts given showed that the 1st respondent was suffering from a disqualification which will fall under Section 9-A . That was why it was called improper acceptance. We do not consider that in the circumstances of this case it was necessary for the petitioner to have also further alleged that the result of the election insofar as it concerns the returned candidate has been materially affected by the improper acceptance of the 1st respondent's nomination. That is the obvious conclusion to be drawn from the circumstances of this case. There was only one seat to be filled and there were only two contesting candidates. If the allegation that the 1st respondent's nomination has been improperly accepted is accepted the conclusion that would follow is that the appellant would have been elected as he was the only candidate validly nominated. There can be, therefore, no dispute that the result of the election insofar as it concerns the returned candidate has been materially affected by the improper acceptance of his nomination because but for such improper acceptance he would not have been able to stand for the election or be declared to be elected. The petitioner had also alleged that the election was void because of the improper acceptance of the 1st respondent's nomination. In the case of election to a single-member constituency if there are more than two candidates and the nomination of one of the defeated candidates had been improperly accepted the question might arise as to whether the result of the election of the returned candidate had been materially affected by such improper reception. In such a case the question would arise as to what would have happened to the votes which had been cast in favour of the defeated candidate whose nomination had been improperly accepted if it had not been accepted. In that case it would be necessary for the person challenging the election not merely to allege but also to prove that the result of the Page 35 of 38 Uploaded by P.S. JOSHI(HC00177) on Thu Apr 02 2026 Downloaded on : Thu Apr 02 16:24:27 IST 2026 C/EA/7/2024 JUDGMENT DATED: 02/04/2026 election had been materially affected by the improper acceptance of the nomination of the other defeated candidate. Unless he succeeds in proving that if the votes cast in favour of the candidate whose nomination had been improperly accepted would have gone in the petitioner's favour and he would have got a majority he cannot succeed in his election petition. Section 100(1)(d)(i) deals with such a contingency. It is not intended to provide a convenient technical plea in a case like this where there can be no dispute at all about the election being materially affected by the acceptance of the improper nomination. “Materially affected” is not a formula that has got to be specified but it is an essential requirement that is contemplated in this section. Law does not contemplate a mere repetition of a formula. The learned Judge has failed to notice the distinction between a ground on which an election can be declared to be void and the allegations that are necessary in an election petition in respect of such a ground. The petitioner had stated the ground on which the 1st respondent's election should be declared to be void. He had also given the material facts as required under Section 83(1)(a) . We are, therefore, of opinion that the learned Judge erred in holding that it was not competent for him to go into the question whether the 1st respondent's nomination had been improperly accepted.” (Underlining ours) It is clear from the above judgment that there is a difference between the improper acceptance of a nomination of a returned candidate and the improper acceptance of nomination of any other candidate. There is also a difference between cases where there are only two candidates in the fray and a situation where there are more than two candidates contesting the election. If the nomination of a candidate other than the returned candidate is found to have been improperly accepted, it is essential that the election Petitioner has to plead and prove that the votes polled in favour of such candidate would have been polled in his favour. On the other hand, if the improper acceptance of nomination is of the returned candidate, there is no necessity of proof that the election has been materially affected as the returned candidate would not have been able to contest the election if his nomination was not accepted. It is not necessary for the Respondent to prove that result of the election in so far as it concerns the returned candidate has been materially affected by the improper acceptance of his nomination as there were only two candidates contesting the election and if the Appellant’s nomination is declared to have been improperly accepted, his election would have to be set aside without any further enquiry and the only candidate left in the fray is entitled to be declared elected.” “26. Mere finding that there has been an improper acceptance of the nomination is not sufficient for a declaration that the election is void Page 36 of 38 Uploaded by P.S. JOSHI(HC00177) on Thu Apr 02 2026 Downloaded on : Thu Apr 02 16:24:27 IST 2026 C/EA/7/2024 JUDGMENT DATED: 02/04/2026 under Section 100 (1) (d) . There has to be further pleading and proof that the result of the election of the returned candidate was materially affected. But, there would be no necessity of any proof in the event of the nomination of a returned candidate being declared as having been improperly accepted, especially in a case where there are only two candidates in the fray. If the returned candidate’s nomination is declared to have been improperly accepted it would mean that he could not have contested the election and that the result of the election of the returned candidate was materially affected need not be proved further. We do not find substance in the submission of Mr. Giri that the judgment in Durai Muthuswami (supra) is not applicable to the facts of this case. The submission that Durai Muthuswami is a case of disqualification under Section 9-A of the Act and, so, it is not applicable to the facts of this case is also not correct. As stated supra, the election petition in that case was rejected on the ground of non- compliance of Section 100 (1) (d) . The said judgment squarely applies to this case on all fours. We also do not find force in the submission that the Act has to be strictly construed and that the election cannot be declared to be void under Section 100 (1) (d) without pleading and proof that the result of the election was materially affected. There is no requirement to prove that the result of the election of the returned candidate is materially affected once his nomination is declared to have been improperly accepted.” In the facts of the present case, there were five candidates who had contested the election and therefore, the observations made in the Durai Swamy’s case would not rescue to the case of the election petitioner. 37. For the reasons recorded, in the facts of the present case, the returning officer had examined the nomination form and affidavit and accepted without any defect of substantive character. In the facts of the present case, there is no allegation of furnishing wrong information and therefore, the petition in the present case, lacks the pleadings of material facts, in the form of cause of action and further there is non-compliance of Section 83 of the R.P. Act. Page 37 of 38 Uploaded by P.S. JOSHI(HC00177) on Thu Apr 02 2026 Downloaded on : Thu Apr 02 16:24:27 IST 2026 C/EA/7/2024 JUDGMENT DATED: 02/04/2026 38. Accordingly, this application is allowed and the Election Petition 2 of 2023 is rejected in terms of Order VII Rule 11(a) and (d) of the CPC. Any connected application/s stands disposed of . (ILESH J. VORA,J) P.S. JOSHI Page 38 of 38 Uploaded by P.S. JOSHI(HC00177) on Thu Apr 02 2026 Downloaded on : Thu Apr 02 16:24:27 IST 2026</div>