JUDGMENT Hon’ble Dilip Gupta, J.—These two applications have been filed by the returned candidate under Order VII Rule 11 of the Code of Civil Procedure, 1908 (hereinafter referred to as the ‘CPC’) (A-7) for rejecting the Election Petition as it does not disclose any cause of action and under Order VI Rule 16, CPC read with Section 86(1) of ‘The Representation of the People Act, 1951’ (hereinafter referred to as the ‘Act’) (A-6) for striking out paragraphs 5 to 21 of the Election Petition. 2. The Election Petition has been filed by Smt. Louise Khurshid under Section 80/81 of the Act calling in question the election of Kuldeep Gangwar for the Vidhan Sabha No. 297, Kaimganj constituency in the State of Uttar Pradesh. 3. The petitioner Smt. Louise Khurshid and the respondent Kuldeep Gangwar, amongst others, had contested the said election which was held on 18th April, 2007. The re-poll was held on 10th May, 2007 on selected polling stations. The respondent was declared elected on 11th May, 2007 with a margin of 9,653 votes as the petitioner had secured 27,325 votes out of the total number of 1,27,126 votes polled, while the returned candidate had secured 36,978 votes. 4. Sri K.R. Singh, learned Counsel for the respondent returned candidate in support of the application filed under Order VII Rule 11, CPC pointed out that the election petition has been filed on grounds contained in Section 100(1)(d)(iii) & (iv) of the Act and Section 83(1)(a) of the Act requires that the election petition must contain a concise statement of material facts on which the petitioner relies. His contention is that in view of the said provisions it was incumbent upon the petitioner to not only state the material facts regarding the improper refusal or rejection/deletion of votes and about non-compliance of the provisions of the Constitution or the Act or of the Rules or Orders made under the Act but to also state material facts as to how the result of the election was materially affected, and since the said material facts have not been stated by the petitioner in the election petition, the same deserves to be rejected under Order VII Rule 11, CPC for not disclosing any cause of action. 5. 5. Sri Satish Chaturvedi, learned Senior Counsel appearing for the petitioner, however, submitted that all the material facts have been stated in the petition and, therefore, the application deserves to be rejected and in support of his contention he has placed reliance upon the decisions of the Supreme Court in Virender Nath Gautam v. Satpal Singh and others, AIR 2007 SC 581 and Harkirat Singh v. Amrinder Singh, (2005) 13 SCC 511 . 6. In order to appreciate the contentions advanced by the learned Counsel for the parties, it would be necessary to examine the relevant provisions of the Act and the averments made in the petition. 7. Section 80 of the 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 81 of the Act deals with the presentation of an election petition and it 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 of the Act. Section 83(1)(a) of the Act provides that an election petition shall contain a concise statement of the material facts on which the petitioner relies. Section 86(1) of the Act provides that 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 Act. Section 87 of the Act stipulates that subject to the provisions of the Act and of any rules made thereunder, every election shall 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. Section 87 (2) of the Act provides that the provisions of the Indian Evidence Act, 1872 shall, subject to the provisions of the Act, be deemed to apply in all respects to trial of an election petition. 8. Section 100 of the Act which deals with the grounds for declaring election to be void is as follows : “100. Section 87 (2) of the Act provides that the provisions of the Indian Evidence Act, 1872 shall, subject to the provisions of the Act, be deemed to apply in all respects to trial of an election petition. 8. Section 100 of the Act which deals with the grounds for declaring election to be void is as follows : “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 a 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; 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 improperly 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 returned candidate to be void. (2).....................................................” 9. In paragraph ‘5’ of the petition, the petitioner has mentioned the grounds for challenging the election. In paragraph 6 of the petition, the petitioner has stated that the concise statement of material facts and full particulars in respect of the grounds mentioned in paragraph ‘5’ of the petition will be stated in the subsequent paragraphs and in paragraph ‘7’ the petitioner has stated that the facts and circumstances on the basis of which the relief has been claimed and the circumstances indicating the non-compliance of the Act, Rules and Orders made under the said Act which has materially affected the result of the election of the returned candidate have been set out in the subsequent paragraphs. The subsequent paragraphs have, therefore, to be examined. 10. The subsequent paragraphs have, therefore, to be examined. 10. Paragraph ‘8’ of the petition merely states that the petitioner is also challenging the action of disallowing the voters to cast their votes on the basis of the ration cards as proof of identity which action is in violation of the provisions of ‘The Representation of People Act, 1951’ (hereinafter referred to as the ‘1951 Act’). Paragraphs 9, 10 and 11 of the petition refer to the provisions of Sections 21 and 22 of the 1951 Act and ‘The Registration of Electors Rules, 1960’ (hereinafter referred to as the ‘1960 Rules’) which have been framed under Section 28 of the 1951 Act. Paragraph ‘12’ of the petition mentions that the Election Commission had issued a letter dated 5th July, 2005 to the Chief Electoral Officers of all the States and the Union Territories circulating the Guidelines for updating the electoral rolls. 11. Paragraphs 13, 14, 15 and 16 of the petition relate to the directions issued by the Election Commission for preventing impersonation of the voters and paragraphs 15 and 16 are as follows : “15. That thus although the Election Commission had in 1995 set the target for universal coverage by EPIC cards and repeatedly held out the promise that Cards would be issued, even in 2007, thousands of voters remain without EPIC Cards. As a consequence, the Election Commission has permitted alternative modes of identifications, including Ration Cards in elections before U.P. Assembly Election, 2007 and thereafter as well. Curiously to begin with ration cards were not included amongst the alternative modes for U.P. elections but were later included. However, although in elections before U.P. elections and thereafter the head of the family was permitted to identify the entire family entered on the Ration Cards, just for UP elections an inexplicable exclusion was made for unmarried sons of the family. Thus a head of the family using a bank pass book or a passport could identify the entire family even though their names are not on the document but on using a Ration Card (which has all the family member’s names) he could only identify his spouse and unmarried daughters. As a result voters mentioned in the deletion list had to turn back without casting their votes. 16. As a result voters mentioned in the deletion list had to turn back without casting their votes. 16. That in addition for the repoll that was ordered as 45 polling booths, the Election Commission required the Ration Cards of the voters to be deposited with the Presiding Officers on the pretext of checking their authenticity causing a fear psychosis amongst illiterate rural voters.” 12. Paragraphs 17, 18, 19 and 20 of the petition relate to the preparation and revision of electoral rolls as contemplated under the provisions of the 1951 Act and the 1960 Rules. They state that after inviting the objections, the final electoral rolls with the supplementary list as contemplated under Rule 22 of the 1960 Rules was published on 15th January, 2007 but subsequently without issuing notices to the persons concerned, as was required under Section 22 of the 1951 Act and Rule 21 of the 1960 Rules, the names of valid voters appearing in the final rolls were illegally deleted. Paragraphs ‘18’ and ‘19’ of the petition in this connection are quoted below : “18. That after the publication of the roll and the supplementary list, without issuing any notices to the person concerned as contemplated under Section 22 of the Representation of People Act, 1951 and Rule 21-A of the Registration of Electors Rules, 1960, names of voters appearing in the final roll were deleted. It is relevant to state here that the names of the valid voters of Kaimganj Assembly Constituency were illegally deleted from the valid voter list. The details of the names polling station is being filed herewith as Scheduled-1 to this election petition and is an integral part of the pleading. Out of 264 polling booths of the 158 polling booths of which figures have been collected already there are 11,067 names deleted in the 2nd supplementary alone, besides those deleted in the 1st supplementary. The total figure is likely to touch 20,000 names. Other than a microscopic number of persons who have died most of these deleted voters are alive and living at the places indicated as their address in the polling rolls. An overwhelming number have voted in the past elections as well as in the Panchayat elections. Furthermore many of the deleted voters have EPIC cards, including the ones who were issued the cards on the basis of the draft rolls that were prepared before final publication. An overwhelming number have voted in the past elections as well as in the Panchayat elections. Furthermore many of the deleted voters have EPIC cards, including the ones who were issued the cards on the basis of the draft rolls that were prepared before final publication. It is also pertinent to state here that earlier polls of Assembly Elections contained the names of about 16,000 voters, who are alive and still have their voting rights but their names were deleted by way of supplementary list, prepared for the 2007 polls, even in the supplementary list those names were not published with the deletion list, the figures shall be demonstrated by presenting both the voter list i.e. final list prepared by the election commission in due course of the election process and the supplementary list on which basis the elections were held. The both list are bulky, thus could not be filed at present and petitioner will file the same later on. To the utter shock of every one, before causing the deletion of the names, neither the notice stipulated under Section 22 nor the notice stipulated under Rule 21-A nor notice stipulated under the Guidelines of the Election Commission in this regard dated 5.7.2005 were issued. The whole exercise therefore, smacks of malafides, illegality, and non-application of mind. For kind perusal of this Hon’ble Court details of the deletion to valid voters names from the voter list of the different polling stations are filed as Scheduled-2 to this election petition and is an integral part of the pleading. 19. That the Election Commission is reported to have deleted 80 lakh names from the voter rolls of U.P. under the relevant Rules and Provisions mentioned above. To the extent that this was done through a survey under intensive or summary revision of rolls and exhibited in the draft roll alongwith supplementary deletion lists might pass muster although the requirements of show cause notices and reasonable hearing can hardly be satisfied by merely putting up the list outside the office of the Electors Registration Office. To the extent that this was done through a survey under intensive or summary revision of rolls and exhibited in the draft roll alongwith supplementary deletion lists might pass muster although the requirements of show cause notices and reasonable hearing can hardly be satisfied by merely putting up the list outside the office of the Electors Registration Office. Thereafter, the publication of the Final roll on 15.1.2007 alongwith the supplementary additions/correction/deletion lists and the delivery of two copies of the roll to political parties, as well as posting it on the Election Commission Web Site may make the roll accessible to the general voters but the requirement of show cause notice and a hearing for voters deleted still remains unsatisfied.” 13. In paragraph ‘20’ of the petition, the petitioner has stated that even her name as well as that of her husband were missing from the marked copy of the electoral rolls in the polling station. It has also been stated that other names were also missing and as a consequence repoll was held by the Election Commission at 45 polling booths on a later date. The said paragraph ‘20’ of the petition is quoted below : “20. That no further supplementary deletion list was published till it was given to the candidates only a week before the polling day, curiously several weeks after the election process was completed the second deletion list has not been posted on the Election Commission Web Site. In Kaimganj, this very situation was further complicated when on polling day the petitioner found her own name as well as that of her husband who is also the party President of the State of U.P. (and her proposer) missing from the marked copy of the roll inside the polling station. It was soon discovered that the other names were also missing without having been moved to the deletion list. However, to cover what was obviously a colossal fraud, the total number of voters was left unchanged by duplicating other names or introducing fictitious names. As a consequence repoll was held by the Election Commissioner at 45 polling booths on a later date. Despite the petitioner’s repeated requests the Election Commission has failed to disclose the names of the culprits who interfered with the roll and neither has any action been taken in this regard. As a consequence repoll was held by the Election Commissioner at 45 polling booths on a later date. Despite the petitioner’s repeated requests the Election Commission has failed to disclose the names of the culprits who interfered with the roll and neither has any action been taken in this regard. The petitioner’s grievance that without a complete investigation, disclosure and accountability not only does the matter remain a mystery but the security and reliability of the roll preparation process becomes doubtful. Further more, it is far from clear that illegally placing names on the deletion list without due process was also not the handiwork of same persons who clearly interfered with the list. Without any cogent evidence that the deletions was done after due process that apprehension becomes very grave. The petitioner sought to inspect the relevant files and papers relating to the deletion that took place subsequent to 15.1.2007 under Rule 32 but could not find anything relevant and indeed received no cooperation from the Electors Registration Office.” 14. In paragraph ‘21’ of the petition, the petitioner has made reference to the directions issued by the Election Commission from time to time listing the alternative documents for identification of the voters and the said paragraph is as follows : “21. That as per Section 61 of the Representation of Peoples Act, 1951 in order to ensure fair and free polls and with a view to prevent impersonation, provisions can be made under the Rules and the Act for production before the Presiding Officer or a Polling Officer of a polling station by every voter, his identity card before getting the ballot paper or voting slip. Though no Rules have been framed as contemplated under Section 61 of 1951 Act but the Election Commission has been issuing Orders under the said Section from time to time listing the alternative documents for identification of the voters. In the General Elections held for Parliament and Legislative Assemblies, prior to U.P. Assembly election held April/May, 2007, Election Commission allowed the Ration Cards as one of the alternative documents for establishing the identity of the voter. In the General Elections held for Parliament and Legislative Assemblies, prior to U.P. Assembly election held April/May, 2007, Election Commission allowed the Ration Cards as one of the alternative documents for establishing the identity of the voter. As stated herein above in the elections for Bihar Assembly, held in 2005, West Bengal Assembly held in 2006, General Elections for Lok Sabha held in 2005, Ration Cards were permitted as one of the documents to establish the identity of the holder of Ration Card as well as the family members subject to the head of the family identifying the rest of the family members and provided they all came together for voting. Similar was the position in the elections held for Goa Assembly after U.P. Assembly polls. In the U.P. Assembly polls the Election Commission decided to hold the polling in seven phases. The Electoral Authorities issued an order under Section 61 dated 31.3.2007 in which they did not permit the use of Ration Cards as a document for identification of voters. However, when all the political parties made representations to the Electoral Authorities, modified the earlier Order and on 4.4.2007 issued a further Order permitting the use of Ration Cards for identification of the voters. However, it was provided that the same can be used only for identification of the head of the family whose photograph is affixed on the Ration Card and on his identification, his spouse, and unmarried daughters. However, the unmarried sons, married sons, their spouses and/or children even if they included in the Ration Card and even if they were identified by the head of the family were not permitted to vote. This discrimination by the Election Commission was without any basis. The discrimination is in utter violation of the Article 14 of the Constitution of India as firstly this is impermissible classification, and secondly this cannot have any nexus with the object sought to be achieved. As such this discrimination violates the guarantee of equality.” 15. It is on the basis of these averments that the petitioner has claimed that the Assembly Election held for 297, Kaimganj constituency be declared void. 16. As such this discrimination violates the guarantee of equality.” 15. It is on the basis of these averments that the petitioner has claimed that the Assembly Election held for 297, Kaimganj constituency be declared void. 16. In the application filed by the respondent under Order VI Rule 16, CPC read with Section 86(1) of the Act, it has been stated that paragraphs 5 to ‘21’ of the election petition do not contain any material facts and, therefore, the said paragraphs should be struck off from the pleadings. 17. I have considered the submissions made by Sri K.R. Singh, learned Counsel appearing for the returned candidate in support of the aforesaid two applications and Sri Satish Trivedi learned Senior Counsel assisted by Sri Ravi Shanker Prasad for the petitioner. 18. However, before proceeding to examine the rival contentions, it would be useful to remember what was observed by the Supreme Court in Jyoti Basu and others v. Debi Ghosal and others, AlR 1982 SC 983, and the relevant observations are : “A right to elect, fundamental though it is to democracy, is, anomalously enough, neither a fundamental right nor a Common Law Right. It is pure and simple, a statutory right. So is the right to be elected. So is the right to dispute an election. Outside of statute, there is no right to elect, no right to be elected and no right to dispute an election. Statutory creations they are, and therefore, subject to statutory limitation. An election petition is not an action at Common Law, nor in equity. It is a statutory proceeding to which neither the common law nor the principles of equity apply but only those rules which the statute makes and applies. It is a special jurisdiction, and a special jurisdiction has always to be exercised in accordance with the statute creating it. Concepts familiar to Common Law and Equity must remain strangers to Election Law unless statutorily embodied. A Court has no right to resort to them on considerations of alleged policy because policy in such matters, as those, relating to the trial of election disputes, is what the statute lays down. In the trial of election disputes, Court is put in a straight jacket. A Court has no right to resort to them on considerations of alleged policy because policy in such matters, as those, relating to the trial of election disputes, is what the statute lays down. In the trial of election disputes, Court is put in a straight jacket. Thus the entire election process commencing from the issuance of the notification calling upon a constituency to elect a member or members right up to the final resolution of the dispute, if any, concerning the election is regulated by the Representation of the People Act, 1951, different stages of the process being dealt with by different provisions of the Act. There can be no election to Parliament or the State Legislature except as provided by the Representation of the People Act, 1951 and again, no such election may be questioned except in the manner provided by Representation of the People Act. So the Representation of the People Act has been held to be a complete and self-contained code within which must be found any right claimed in relation to an election or an election dispute........” (emphasis supplied) 19. These observations leave no manner of doubt that in the trial of election petitions, the Court is put in a straight jacket and an election cannot be questioned except in the manner provided under the Act which is a self contained code. 20. It is clear from a perusal of Section 100(1)(d) of the Act that the election of a returned candidate can be declared void if the High Court is of the opinion that the result of the election, insofar as it concerns the returned candidate, has been materially affected by any of the grounds stated in sub-sections (i) to (iv). The petitioner has, therefore, not only to plead the material facts that the result of the election of the returned candidate has been materially affected but also plead in addition thereto that it has been materially affected because of any or some or all of the ground(s) mentioned in sub-sections (i) to (iv) of Section 100(1)(d) of the Act. The petitioner has, therefore, not only to plead the material facts that the result of the election of the returned candidate has been materially affected but also plead in addition thereto that it has been materially affected because of any or some or all of the ground(s) mentioned in sub-sections (i) to (iv) of Section 100(1)(d) of the Act. This is what was observed by this Court in Ram Abhilakh Tiwari v. Election Tribunal, Gonda and others, AIR 1958 All 663 and the relevant observations are : “Consequently, whenever a petition is based on the provisions of Section 100(1)(d)(iv) of the Representation of the People Act there must be a clear allegation in the first instance that the result of the election has been materially affected and then in addition the petition should show that it has been materially affected by non-compliance with the provisions of the Representation of People Act or the rules framed thereunder”. 21. It is not in dispute that the present election petition has been filed on grounds (iii) and (iv) of Section 100(1)(d) of the Act. The contention of the petitioner is that the result of the election, insofar as it concerns the returned candidate, has been materially affected by (a) the improper refusal or rejection/deletion of votes; and (b) by non-compliance of the provisions of the Constitution or of the Act or of any Rules or Order made under the Act. This is clear from the five grounds that have been mentioned by the petitioner in paragraph ‘5’ of the petition which are as follows : “5. That the petitioner is now challenging the election of the respondent/returned candidate inter alia on the following grounds : (a) Because the result of the election has materially affected due to ‘improper refusal or rejection/deletion of votes within the meaning of Section 100 (1)(d)(iii) of the Act and also ‘non-compliance’ with the provisions of the Constitution or the Act or any rules or orders made under the Act within the meaning of Section 100 (1)(d)(iv) of the Act and other enabling provisions of the Act, Rules, Orders and Instructions issued by the Election Commission of India. (b) Because the result of the election has been materially affected on account of fact that the election were held without compliance of provision of Act/Rules and orders made under the Act. (b) Because the result of the election has been materially affected on account of fact that the election were held without compliance of provision of Act/Rules and orders made under the Act. (c) Because the deletion from the final Electoral roll published under Rule 22 of the Registration of Electors Rules, 1960 cannot be carried out without issuing notice to the person concerned. In the present case, deletion of thousands of voters from the Electoral Rolls without issuing any notice to them as contemplated under Section 22 of the Representation of People Act, 1950 as well as Rule 22 of the Registration of Electors Rules, 1960 as well as Guidelines issued by the Electoral Authorities dated 5.7.2005. Therefore, the whole exercise is illegal, unjustified and unsustainable in law. The deletion therefore, are not only in contravention of the provisions of the Representation of Peoples Act, 1951 as well as the Registration of Electors Rules, but are also in violation of the principles of fair play and natural justice. It is a settled principle of law that no one can be condemned unheard. The valuable right of the voters has been taken away without giving any hearing to them much less a show cause notice. Further the action of the respondent is also in violation of the principle of legitimate expectations that every voter whose name finds place in the final roll published after revision of the mother roll has, an expectation as a genuine voter, that he is entitled to exercise his right to vote and elect the representative of his choice. (d) Because the Ration Card which was permitted as a document for identification of a voter’s entire family in all elections prior to the U.P. Assembly elections held in April, 2007 and even in the elections for Goa ‘Assembly thereafter in May, 2007, was not permitted for identification of the unmarried sons, married sons, their spouses etc. in the U.P. Elections. The treatment meted to the male members and their dependents, in the matter of use of Ration Cards for identification for voting is an impermissible classification. Further more, this classification has no nexus with the object sought to be achieved. This discrimination therefore is in violation of Article 14, (i.e. Equality clause), Article 19(1)(a) (freedom of expression) and Article 21 of the Constitution of India. Further more, this classification has no nexus with the object sought to be achieved. This discrimination therefore is in violation of Article 14, (i.e. Equality clause), Article 19(1)(a) (freedom of expression) and Article 21 of the Constitution of India. This is also violative of principles of “Legitimate expectations” and “Fair play in action”. (e) Because the election has been materially affected on account of non-observation of rules and directions issued by the Election Commission under the power conferred by the Constitution of India.” 23. It was, therefore, incumbent upon the petitioner to set out in the Election Petition all the material facts in accordance with the provisions of the Act because if such material facts are not stated in the Election Petition then it is liable to be dismissed as the case would be governed by Section 83(1)(a) of the Act read with Order VII Rule 11(a), CPC. This is what was observed by the Supreme Court in Virender Nath Gautam. The Supreme Court in L.R. Shivaramagowda and others v. T.M. Chandrashekar (Dead) by LRs and others, (1999) 1 SCC 666 , also observed: “That apart, it is rightly pointed out by the appellant’s Counsel that in order to declare an election to be void under Section 100(1)(d)(iv), it is absolutely necessary for the election petitioner to plead that the result of the election insofar as it concerned the returned candidate had been materially affected by the alleged non-compliance with the provisions of the Act or of the Rules. We have already extracted para 39 of the election petition which is the only relevant paragraph. One will search in vain for an averment in that paragraph that the appellant had spent for the election an amount exceeding the prescribed limit or that the result of the election was materially affected by the failure of the appellant to give true and correct accounts of expenditure. In the absence of either averment, it was not open to the appellant to adduce evidence to that effect. It cannot be denied that the two matters referred to above are material facts which ought to find a place in an election petition if the election is sought to be set aside on the basis of such facts.” (emphasis supplied) 23. It cannot be denied that the two matters referred to above are material facts which ought to find a place in an election petition if the election is sought to be set aside on the basis of such facts.” (emphasis supplied) 23. In Charan Dass v. Surinder Kumar and others, 1995 Supp (3) SCC 318, the Supreme Court had also observed : “Before proceeding further, a glaring omission in the petition may be noticed here, namely, that it has not been alleged that the result of the election has been materially affected by all or any of the alleged irregularities during counting. Seen in this context, the averments with regard to polling booth 43-A even if taken to be correct do not warrant setting aside of the election of the successful candidate...........” 24. Having said so, it has now to be seen what are ‘material facts’. The Supreme Court in Virender Nath Gautam pointed out that ‘material facts’ are facts upon which the cause of action of the plaintiff or the defence of the defendant depends and failure to state even a single material fact will entail dismissal of the Suit or petition. The relevant portion of the judgment is as follows : “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, (Third edn.); p.349]. The phrase ‘material facts’, therefore, may be said to be those facts upon which a party relies for his 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. In the leading case of Phillips v. Phillips, (1878) 4 QBD 127 : 48 LJ QB 135, Cotton, LJ. Stated : “What particulars are to be stated must depend on the facts of each case. In the leading case of Phillips v. Phillips, (1878) 4 QBD 127 : 48 LJ QB 135, Cotton, LJ. Stated : “What particulars are to be stated must depend on the facts of each case. But in my opinion it is absolutely essential that the pleading, not to be embarrassing to the defendants, should state those facts which will put the defendants on their guard and tell them what they have to meet when the case comes on for trial.” In Bruce v. Odhams Press Ltd., (1936) 1 KB 697 : (1936) 1 All ER 287, Scott, LJ. referring to Phillips v. Phillips observed : “The cardinal provision in Rule 4 is that the statement of claim must state the material facts. The word ‘material’ means necessary for the purpose of formulating a complete cause of action; and if any one ‘material’ statement is omitted, the statement of claim is bad; it is ‘demurrable’ in the old phraseology, and in the new is liable to be ‘struck out’ under R.S.C. Order 25 Rule 4 (see Phillips v. Phillips); or ‘a further and better statement of claim’ may be ordered under Rule 7.” 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. 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. 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.” (emphasis supplied) 25. In Mahadeorao Sukaji Shivankar v. Ramaratan Bapu and others, (2004) 7 SCC 181 , the Supreme Court pointed out that what particulars would be ‘material facts’ would depend upon the facts of each case but all the basic and primary facts which must be proved at the trial by the party to establish existence of cause of action or defence are material facts and must be stated in the pleading of the party. The relevant observations are as follows : “Now, it is no doubt true that all material facts have to be set out in an election petition. If material facts are not stated in a plaint or a petition, the same is liable to be dismissed on that ground alone as the case would be covered by clause (a) of Rule 11 of Order 7 of the Code. The question , however, is as to whether the petitioner had set out material facts in the election petition. The expression “material facts” has neither been defined in the Act nor in the Code. It may be stated that the material facts are those facts upon which a party relies for his claim or defence. In other words, material facts are facts upon which the plaintiffs 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 existence of cause of action or defence are material facts and must be stated in the pleading of the party.” (emphasis supplied) 26. As noticed hereinabove, the present Election Petition has been filed on grounds (iii) and (iv) of Section 100(1)(d) of the Act. As noticed hereinabove, the present Election Petition has been filed on grounds (iii) and (iv) of Section 100(1)(d) of the Act. The first requirement contained in Section 100(1)(d) of the Act is that the petitioner must establish that the result of the election ‘has been materially affected’ by any or some or all of the ground(s) contained in sub-section (iii) and (iv) of Section 100(1)(d) of the Act. In other words, the petitioner will not succeed even if he is able to establish the existence of such ground(s) if he does not plead and prove that the result of the election, insofar as it concerns the returned candidate, has been materially affected. It was, therefore, obligatory on the part of the petitioner to have stated such material facts in the pleadings. 27. It needs to be mentioned that the Supreme Court in Vashist Narain Sharma v. Dev Chandra and others, AIR 1954 SC 513 , pointed out that the ‘result’ should not be judged by mere increase and decrease in the total number of votes secured by the returned candidate but by proof of the fact that the wasted votes would have been distributed in such a manner between the contesting candidates as would have brought about the defeat of the returned candidate. The relevant observations are as follows : “Before an election can be declared to be wholly void under Section 100 (1)(c), the Tribunal must find that “the result of the election has been materially affected. These words have been the subject of much controversy before the Election Tribunals and it is agreed that the opinions have not always been uniform or consistent. These words seem to us to indicate that the result should not be judged by the mere increase or decrease in the total number of votes secured by the returned candidate but by proof of the fact that the wasted votes would have been distributed in such a manner between the contesting candidates as would have brought about the defeat of the returned candidate. (emphasis supplied) ........................................ But we are not prepared to hold that the mere fact that the wasted votes are greater than the margin of votes between the returned candidate and the candidate securing the next highest number of votes must lead to the necessary inference that the result of the election has been materially affected. (emphasis supplied) ........................................ But we are not prepared to hold that the mere fact that the wasted votes are greater than the margin of votes between the returned candidate and the candidate securing the next highest number of votes must lead to the necessary inference that the result of the election has been materially affected. That is a matter which has to be proved and the onus of proving it lies upon the petitioner. It will not do merely to say that all or a majority of the wasted votes might have gone to the next highest candidate. ........................................ We are of the opinion that the language of Section 100 (1)(c) is too clear for any speculation about possibilities. The section clearly lays down that improper acceptance is not to be regarded as fatal to the election unless the Tribunal is of opinion that the result has been materially affected. The number of wasted votes was 111. It is impossible to accept the ‘ipse dixit’ of witnesses coming from one side or the other to say that all or some of the votes would have gone to one or the other on some supposed or imaginary ground. The question is one of fact and has to be proved by positive evidence. If the petitioner is unable to adduce evidence in a case such as the present, the only inescapable conclusion to which the Tribunal can come is that the burden is not discharged and that the election must stand. Such result may operate harshly upon the petitioner seeking to set aside the election on the ground of improper acceptance of a nomination paper, but neither the Tribunal, nor this Court is concerned with the inconvenience resulting from the operation of the law. How this state of things can be remedied is a matter entirely for the legislature to consider. The English Act to which we have referred presents no such conundrum and lays down a perfectly sensible criterion upon which the Tribunal can proceed to declare its opinion. It directs the Tribunal not to set aside the election if it is of opinion that the irregularity has not materially affected the result.” 28. The English Act to which we have referred presents no such conundrum and lays down a perfectly sensible criterion upon which the Tribunal can proceed to declare its opinion. It directs the Tribunal not to set aside the election if it is of opinion that the irregularity has not materially affected the result.” 28. The principles enunciated by the Supreme Court in Vashist Narain Sharma (supra) under the provisions of Section 100(1)(c) of the Act, as it stood prior to its amendment in 1956, will apply with equal force to the provisions of Section 100(1)(d) of the Act as they are in pari materia. This is what was observed by the Supreme Court in Shiv Charan Singh v. Chandra Bhan Singh and others, AIR 1988 SC 637 : “Section 100 (1)(c) of the Act as it stood in 1952 was in pari materia with the present Section 100 (1)(d)(l) of the Act. The interpretation of Section 100 (1)(c) of the Act as given by the Court in Vashist Narain Sharma’s case ( AIR 1954 SC 513 ) fully applies to the interpretation of Section 10(1)(d)(l) of the Act. We are in respectful agreement with the view taken by this Court in the aforesaid decisions. The election of a returned candidate cannot be declared void on the ground of improper acceptance of nomination paper of a contesting candidate unless it is established by positive and reliable evidence that improper acceptance of the nomination of a candidate materially affected the result of the election of the returned candidate. The result of the election can be affected only on the proof that the votes polled by the candidate whose nomination paper had wrongly been accepted would have been distributed in such a manner amongst the remaining candidates that some other candidate (other than the returned candidate) would have polled the highest number of valid votes. In other words the result of the election of the candidate cannot be held to have been materially affected unless it is proved that in the absence of the candidate whose nomination paper was wrongly accepted in the election contest, any other candidate (other than the returned candidate) would have polled the majority of valid votes. In the absence of any such proof the result cannot be held to have been materially affected. In the absence of any such proof the result cannot be held to have been materially affected. The burden to prove this material effect is difficult and many times it is almost impossible to produce the requisite proof. But the difficulty in proving this fact does not alter the position of law. The legislative intent is clear that unless the burden, howsoever difficult it may be, is discharged, the election cannot be declared void. (emphasis supplied) 29. In Paokai Haokip v. Rishang and others, AIR 1969 SC 663 , the Supreme Court also observed : “In our opinion, the decision of the learned Judicial Commissioner that the election was in contravention of the Act and the Rules was correct in the circumstances of this case; but that does not alter the position with regard to Section 100 (1)(d)(iv) of the Act. The section requires that the election petitioner must go a little further and prove that the result of the election had been materially affected. How he has to prove it has already been stated by this Court and applying that test, we find that he has significantly failed in his attempt and therefore the election of the returned candidate could not be avoided. It is no doubt true that the burden which is placed by law is very strict; even if it is strict it is for the Courts to apply it.” (emphasis supplied) 30. In L.R. Shivramagowda the Supreme Court also observed : “We must also refer to the fact that for the purpose of Section 100(1)(d)(iv), it is necessary to aver specifically that the result of the election insofar as it concerns a returned candidate has been materially affected due to the said corrupt practice. Such averment is absent in the petition.” 31. It is no doubt true that the aforesaid decisions relate to proving that the ‘result of the election has been materially affected’ but as pointed out by the Supreme Court in L.R. Shivaramagowda there has to be an averment in the election petition before any evidence can be adduced and, therefore, such material facts about the result of the election being materially affected should be pleaded. 32. I have read paragraphs 8 to 21 of the Election Petition more than once but have searched in vain for any such pleading in the Election Petition. 32. I have read paragraphs 8 to 21 of the Election Petition more than once but have searched in vain for any such pleading in the Election Petition. The material facts regarding the first requisite under Section 100(1)(d) of the Act ‘that the result of the election has been materially affected’ are, therefore, lacking in this Election Petition. 33. The inevitable conclusion that follows from the reading of the plaint as a whole is that the Election Petition is liable to be dismissed under Order VII Rule 11 (a) CPC as there is no averment in the plaint that the result of the election has been materially affected and nor material facts in this regard have been stated. 34. Even otherwise, when an election of a returned candidate is sought to be declared void on the ground(s) mentioned in Section 100(1)(d)(iii) and (iv) of the Act, the Election Petition must contain such material facts. 35. Learned Counsel appearing for the returned candidate has placed reliance upon the decision of the Supreme Court in Jaipal Singh v. Smt. Sumitra Mahajan and another, AIR 2004 SC 2066 and submitted that the material facts should have been pleaded in the Election Petition failing which the Election Petition is liable to be dismissed. In this case the Supreme Court observed : “As to what is the material fact has to be decided in the present case, in the context of the election petition under the said Act. An election petition is a matter of statutory right. In the petition, the key issue was : whether the appellant had an office of profit on the date of scrutiny. For that purpose, appellant ought to have stated that on 13-3-2002 he had requested for waiver of the notice period; that the appointing authority had received the notice on the specified date and that his request for waiver stood granted on the date of scrutiny and he ceased to be a Government servant. These were the material facts which the appellant should have pleaded so that the returned candidates would not be taken by surprise. They were material facts within his knowledge and ought to have been pleaded in the election petition. Lastly, even the letter of the appellant seeking the waiver of the notice period did not form part of the election petition. They were material facts within his knowledge and ought to have been pleaded in the election petition. Lastly, even the letter of the appellant seeking the waiver of the notice period did not form part of the election petition. Hence, the High Court was right in dismissing the election petition for want of material facts.” (emphasis supplied) 36. For finding out whether the plaint discloses a cause of action or not, the averments made in the plaint have to be seen. This is what was observed by the Supreme Court in Hardesh Ores Pvt. Ltd. v. M/s. Hede & Co., 2007 AIR SCW 3456: “.........It is well settled that whether a plaint discloses a cause of action is essentially a question of fact, but whether it does or does not must be found out from reading the plaint itself. For the said purpose the averments made in the plaint in their entirety must be held to be correct. The test is whether the averments made in the plaint if taken to be correct in their entirety a decree would be passed. The averments made in the plaint as a whole have to be seen to find out whether clause (d) of Rule 11 of Order VII is applicable. It is not permissible to cull out a sentence or a passage and to read it out of the context in isolation. Although it is the substance and not merely the form that has to be looked into, the pleading has to be construed as it stands without addition or subtraction of words or change of its apparent grammatical sense." 37. In I.T.C. Limited v. Debts Recovery Appellate Tribunal and others, 1998(2) SCC 70 the Supreme Court sounded a note of caution in this regard and it was observed : “The question is whether a real cause of action has been set out in the plaint or something purely illusory has been stated with a view to get out of Order 7 Rule 11, CPC. Clever drafting creating illusions of cause of action are not permitted in law and a clear right to sue should be shown in the plaint." 38. Clever drafting creating illusions of cause of action are not permitted in law and a clear right to sue should be shown in the plaint." 38. In Liverpool & London S.P. & I Asson Ltd. v. M.V. Sea Success I and another, JT 2003 (9) SC 218 the Supreme Court pointed out what ‘cause of action is : “A cause of action is a bundle of facts which are required to be pleaded and proved for the purpose of obtaining relief claimed in the suit. For the aforementioned purpose, the material facts are required to be stated but not the evidence except in certain cases where the pleading relies on any misrepresentation, fraud, breach of trust, wilful default, or undue influence. .............................................. In ascertaining whether the plaint shows a cause of action, the Court is not required to make an elaborate enquiry into doubtful or complicated questions of law or fact. By the statute the jurisdiction of the Court is restricted to ascertaining whether on the allegations a cause of action is shown................. .............................................. The reason for the aforementioned conclusion is that if a legal question is raised by the defendant in the written statement, it does not mean that the same has to be decided only by way of an application under Order 7 Rule 11 of the Code of Civil Procedure which may amount to pre-judging the matter.” 39. In Sopan Sukhdeo Sable and others v. Assistant Charity Commissioner and others, (2004) 3 SCC 137 , the Supreme Court observed : “There cannot be any compartmentalization, dissection, segregation and inversions of the language of various paragraphs in the plaint. If such a course is adopted it would run counter to the cardinal canon of interpretation according to which a pleading has to be read as a whole to ascertain its true import. It is not permissible to cull out a sentence or a passage and to read it out of the context in isolation. Although it is the substance and not merely the form that has to be looked into, the pleading has to be construed as it stands without addition or subtraction or words or change of its apparent grammatical sense. The intention of the party concerned is to be gathered primarily from the tenor and terms of his pleadings taken as a whole. The intention of the party concerned is to be gathered primarily from the tenor and terms of his pleadings taken as a whole. At the same time it should be borne in mind that no pedantic approach should be adopted to defeat justice on hair-splitting technicalities.” 40. Paragraphs 8, 9, 10 and 11 of the Election Petition relate to the provisions of the 1951 Act and the 1960 Rules. Paragraphs 13, 14, 15 and 16 of the Election Petition relate to the directions issued by the Election Commission for preventing impersonation. Paragraphs 17, 18, 19 and 20 of the Election Petition relate to the preparation and revision of electoral-rolls as contemplated under the provisions of the 1951 Act and the 1960 Rules. It has been stated that the final electoral-rolls with the supplementary list as contemplated under Rule 22 was published on 15th January, 2007 but subsequently without issuing notices to the person concerned, the names of the valid voters appearing in the final rolls were illegally deleted. It has also been stated that the whole exercise of deleting the names was carried out without issuing any notice as contemplated under Section 22 of the 1951 Act or after following the guidelines dated 5th July, 2007 of the Election Commission and, therefore, smacks of malafides, illegality and non-application of mind. It is in paragraph 20 of the Election Petition that the petitioner has stated that even her name as well as that of her husband and other names were also missing from the electoral-rolls in the polling station. However, it has also been stated that this resulted in the holding of re-polls at 45 polling booths on a later date. There is no allegation in the Election Petition that the electoral-rolls on the basis of which the re-polling was held at 45 polling booths were also defective and all that has been stated is that despite repeated requests made by the petitioner, the Election Commission failed to disclose the names of the ‘culprits’ who had interfered with the rolls and nor action has been taken against them and that without a complete investigation, disclosure and accountability, the reliability of the roll preparation process becomes doubtful. No material facts have been stated as to how the directions issued by the Election Commission in its order dated 5th July, 2005 had not been complied with in respect of the re-polls conducted at the 45 polling booths. Paragraph 21 of the Election Petition merely mentions that though the order dated 4th April, 2007 permitted the use of ‘Ration Card’ for identification of the voters but the head of the family could identify his spouse and unmarried daughters only and not the unmarried sons, married sons, their spouses or children even if their names were included in the Ration Card and this has resulted in discrimination. This is merely a general statement and does not contain material facts since it does not even mention as to how many unmarried sons, married sons, their spouses and children could not actually tender their votes when the Ration Card was utilised for identification of the voters since the head of the family was not permitted to identify them. 41. Learned Counsel for the petitioner, however, placed reliance upon a Constitution Bench decision of the Supreme Court in Balwan Singh v. Lakshmi Narain and others, AIR 1960 SC 770 . This decision is of no benefit to the petitioner. The Constitution Bench held that an election petition was not liable to be dismissed in limine merely because full particulars of the corrupt practice alleged were not set out. On the facts of the case, the Court found that the alleged corrupt practice of hiring a vehicle for the conveyance of the voters to the polling station was sufficiently set out in the pleading. The Court pointed out that the corrupt practice was the hiring or procuring of the vehicle for the conveyance of the electors, and so if full particulars of conveying by a vehicle of electors to or from any polling station were given, Section 83 was duly complied with, even if the particulars of the contract of hiring, as distinguished from the fact of hiring, were not given. 42. Learned Counsel for the petitioner also placed reliance upon the decision of the Supreme Court in Virender Nath Gautam. 42. Learned Counsel for the petitioner also placed reliance upon the decision of the Supreme Court in Virender Nath Gautam. The appellant had challenged the election of the returned candidate to the Legislative Assembly on the ground that many void votes had been polled and there were cases of double voting and all such irregularities had vitiated the election and materially affected the result thereof. It was stated in paragraph 8 of the Election Petition that as many as 188 votes had been wrongly counted though they were invalid/void votes and since the margin of votes between the defeated candidate and the returned candidate was only 51 votes, it had materially affected the result of the election. The particulars of the 188 invalid/void votes had been given in paragraphs 8(i), 8(ii), 8(iii) and 8(iv) of the petition. It was stated in these paragraphs that 37 votes of dead persons had been cast and they should not have been counted; that as many as 60 double votes had been cast and thereby 120 votes had been counted though there were only 60 voters; that 19 void votes had been cast and that 6 persons named in the petition had sent double postal ballot as a result of which 12 votes had been cast instead of 6 votes. It was the case taken up in the petition that because of these reasons the result of the election had been materially affected. The High Court accepted the contention of the learned Counsel for the returned candidate that the Election Petition did not disclose any cause of action since it found that the Election Petition was not in accordance with Section 83(1)(a) of the Act as it was bereft of primary facts to complete the cause of action. In coming to this conclusion, the High Court observed that though the appellant had given the particulars of the 37 dead persons in respect of whom the voting right was exercised by impersonation but the appellant should have stated as to when and how he came to know about these 37 dead persons. Regarding 60 persons alleged to have cast their votes twice in the same Constituency, the High Court observed that the Election Petition was silent as to when and how the appellant came to know about such persons having cast their votes in different booths in the same Constituency. Regarding 60 persons alleged to have cast their votes twice in the same Constituency, the High Court observed that the Election Petition was silent as to when and how the appellant came to know about such persons having cast their votes in different booths in the same Constituency. Regarding 19 void votes where the allegation was that persons had voted in two different Constituencies, the High Court observed that the allegations were not supported by material facts. Regarding double voting by 6 persons in respect of postal ballot papers, the High Court observed that though the names of such persons had been given but the allegation on the face of it was bereft of material facts and only presumption was drawn. 43. The Supreme Court found that the High Court had not dealt with the averments made in paragraph 8 of the Election Petition at all wherein it had been asserted by the Election Petitioner that as many as 188 votes had been wrongly counted in spite of the fact that all these votes were invalid and void votes and that since the margin of votes between defeated candidate and the returned candidate was only 51, wrong counting of 188 invalid/void votes had materially affected the result of the election. Even otherwise the Supreme Court found that all material facts had been stated in paragraphs 8(i), 8(ii), 8(iii) and 8(iv) of the Election Petition and the approach of the High Court was not in consonance with law as the High Court had ventured to enter the prohibited area in considering the correctness of the allegations which are to be considered and adjudicated at the time of trial. It is in this context that the Supreme Court observed : “There is distinction between facta probanda (the facts required to be proved, i.e. material facts) and facta probantia (the facts by means of which they are provided, i.e. particulars or evidence). It is settled law that pleadings must contain only facta probanda and not facta probantia. The material facts on which the party relies for his claim are called facta probanda and they must be stated in the pleadings. But the facts or facts by means of which facta probanda (material facts) are proved and which are in the nature of facta probantia particulars or evidence) need not be set out in the pleadings. The material facts on which the party relies for his claim are called facta probanda and they must be stated in the pleadings. But the facts or facts by means of which facta probanda (material facts) are proved and which are in the nature of facta probantia particulars or evidence) need not be set out in the pleadings. They are not facts in issue, but only relevant facts required to be proved at the trial in order to establish the fact in issue. In our considered opinion, material facts which are required to be pleaded in the Election Petition as required by Section 83(1) of the Act read with Order VII, Rule 11(a) of the Code have been pleaded by the election-petitioner, cause of action has been disclosed in the Election Petition and, hence, the petition could not have been dismissed by the High Court. The impugned order of the High Court suffers from infirmity and cannot be sustained. The High Court, in our considered opinion, stepped into prohibited area of considering correctness of allegations and evidence in support of averments by entering into the merits of the case which would be permissible only at the stage of trial of the Election Petition and not at the stage of consideration whether the Election Petition was maintainable and dismissed the petition. The said action, therefore, cannot be upheld and the order deserves to be set aside." (emphasis supplied) 44. It is, therefore, clear that the Supreme Court found as a fact that the material facts which were required to be pleaded in the Election Petition were pleaded and the cause of action was disclosed and, therefore, in such circumstances, the petition could not have been dismissed. 45. In the present petition, as seen above, material facts regarding grounds (iii) and (iv) of Section 100(l)(d) of the Act have not been pleaded in the election petition. In such circumstances, the Election Petition is also liable to be dismissed under Order VII Rule 1l(a) CPC as the plaint does not disclose any cause of action. 46. Thus, for all the reasons stated above, the Election Petition is liable to be dismissed under Order VII Rule 11, CPC as it does not disclose any cause of action. Application (A-7) filed by the returned candidate is, accordingly, allowed and the Election Petition is dismissed. 46. Thus, for all the reasons stated above, the Election Petition is liable to be dismissed under Order VII Rule 11, CPC as it does not disclose any cause of action. Application (A-7) filed by the returned candidate is, accordingly, allowed and the Election Petition is dismissed. It is, therefore, not necessary to pass any order on the application (A-6) filed under Order VI Rule 16, CPC. There shall be no order as to costs. ————