JUDGMENT P. Bhavadasan, J. 1. Election to the 075 Angamaly Assembly constituency was held on 13.4.2011. The petitioner was a candidate sponsored by the UDF and the respondent was a candidate sponsored by the LDF. Counting took place on 13.5.2011. Respondent secured 61500 votes, whereas the petitioner could poll only 54330. Hence, the respondent, who obtained the largest number of votes, was declared duly elected. 2. In this petition, the petitioner challenges the election of the respondent mainly on three grounds. They are (i) the respondent was holding an office of profit under the State Government and therefore he was disqualified under Article 191 of the Constitution of India from contesting the election, (ii) there is gross violation of S.38 of the Representation of the People Act, 1951 (hereinafter referred to as 'the Act') and the Conduct of Election Rules in preparing the list of candidates and (iii) in the election campaign the respondent used a poster showing him standing before the newly put up KSRTC bus stand at Angamaly and thereby took undue advantage of the same. 3.The allegations in brief are that at the time of filing of nomination the respondent was functioning as a Notary appointed by the State Government and therefore he held an office of profit. Even at the time when he filed the nomination, his name continued in the Register of Notaries maintained by the State. He is an advocate and was appointed as Notary by the orders of the State Government. He is to have an office of his own. He shall have and use a seal in the prescribed form and design. According to the petitioner, there can be no doubt that the respondent was holding an office of profit. 4.The second ground alleged is that there is violation of S.38 of the Act. That Section stipulates the manner in which the candidates are to be ranked in the ballot paper. Initially a list was published, which is produced as Annexure C. According to the petitioner, without any authority and without any reason thereafter the list was revised and Annexure D was published. The change of the list is unauthorised and constitutes violation of the provisions of the Act and the Rules providing a ground for setting aside the election. Initially a list was published, which is produced as Annexure C. According to the petitioner, without any authority and without any reason thereafter the list was revised and Annexure D was published. The change of the list is unauthorised and constitutes violation of the provisions of the Act and the Rules providing a ground for setting aside the election. 5.The respondent has made use of a poster, wherein he is shown as standing before the KSRTC Bus stand at Angamaly which was put up recently. It is alleged that by doing so he has misused his office and made use of a public building for his campaign thereby violating the election code. 6. The grounds on which the election is assailed are under S. 100(1)(a) and 100(1)(d)(iv) of the Act. Accordingly, it is alleged that the election of the respondent is liable to be set aside. However, there is no prayer seeking a consequent declaration that the petitioner is duly elected. 7. The respondent filed preliminary objections and wanted to have the maintainability of the petition heard. In the objection so filed, it is contended that Notary is not an office of profit either under the Central Government or under the State Government and therefore does not fall within the prohibition envisaged under Article 191 of the Constitution of India. As regards the other two grounds, it is contended that even assuming them to be true, they do not provide grounds for setting aside the election and therefore, the petition has to fail. Regarding the latter two contentions, it is also pointed out that there is absolute want of pleadings or in other words, the material facts are not stated which constitute grounds for setting aside the election. It is pointed out that in order to attract S.100(1)(d)(iv), it will have to be specifically pleaded that by virtue of the violation of the provisions of the Act and the Rules, the election of the respondent has been materially affected. There is no such pleading and therefore, the petition has to fail at the threshold itself. It is also pointed out that there is no triable issue as could be gathered from the pleadings in the case. 8. Part VI Chapter II deals with presentation of election petition and its trial by the High Court. There is no such pleading and therefore, the petition has to fail at the threshold itself. It is also pointed out that there is no triable issue as could be gathered from the pleadings in the case. 8. Part VI Chapter II deals with presentation of election petition and its trial by the High Court. S. 80 stipulates that no election can be called in question except by an election petition presented in accordance with the provisions of the Act. S.80A clothes the High court to try an election petition. S.81 deals with the manner of presentation of an election petition and S. 82 deals with the parties to the election petition. S. 83 deals with the contents of the election petition and S. 84 is regarding the relief that may be claimed by the petitioner. S.86 deals with the trial of the election petition and S.87 deals with the procedure to be followed by the High Court. It is significant to notice that by S.87 of the Act, the provisions of the Code of Civil Procedure are made applicable for trial of election petition. The other relevant Section is S.100. S.100 provides grounds for declaring an election to be void. It reads as follows: "100. It is significant to notice that by S.87 of the Act, the provisions of the Code of Civil Procedure are made applicable for trial of election petition. The other relevant Section is S.100. S.100 provides grounds for declaring an election to be void. It reads as follows: "100. Grounds for declaring election to be void.- (1) Subject to the provisions of subsection (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; o (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, in so far as it concerns a returned candidate, has been materially affected- (i) by the improper acceptance or 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) If in the opinion of the High Court, a returned candidate has been guilty by an agent other than his election agent, of any corrupt practice but the High Court is satisfied- (a) that no such corrupt practice was committed at the election by the candidate or his election agent, and every such corrupt practice was committed contrary to the orders, and without the consent, of the candidate or his election agent; (b) omitted (c) that the candidate and his election agent took all reasonable means for preventing the commission of corrupt practices at the election; and (d) that in all other respects the election was free from any corrupt practice on the part of the candidate or any of his agents, then the High Court may decide that the election of the returned candidate is not void." 9. The relevant provisions for the present purpose are S.100(1)(a) and S. 100(1)(d)(iv) of the Act. As per S. 100(1)(a) of the Act, if it is established that as on the date of the election, the returned candidate was not qualified or was disqualified, then his election has to be held void. In the case of S. 100(1)(d)(iv) of the Act, the petitioner has not only to plead and establish that there was non-compliance with the provisions of the Constitution of India or the Act or of any rules or orders made under the Act, but also has to plead and establish that by virtue of those violations, the election of the returned candidate has been materially affected. 10. Necessarily, one will have to refer to Article 191 of the Constitution of India. The same reads as follows: "191. 10. Necessarily, one will have to refer to Article 191 of the Constitution of India. The same reads as follows: "191. Disqualification for membership.” (1) A person shall be disqualified for being chosen as, and for being, a member of the Legislative Assembly or Legislative Council of a State-- (a) if he holds any office of profit under the Government of India or the Government of any State specified in the First Schedule, other than an office declared by the Legislature of the State by law not to disqualify its holder; (b) if he is of unsound mind and stands so declared by a competent court; (c) if he is an undischarged insolvent; (d) if he is not a citizen of India, or has voluntarily acquired the citizenship of a foreign State, or is under any acknowledgment of allegiance or adherences to a foreign State; (e) if he is so disqualified by or under any law made by Parliament. Explanation.-- For the purposes of this clause, a person shall not be deemed to hold an office of profit under the Government of India or the Government of any State specified in the First Schedule by reason only that he is a Minister either for the Union or for such State. (2) A person hall be disqualified for being a member of the Legislative Assembly or Legislative Council of a State if he is so disqualified under the Tenth Schedule." 11. As already noticed, the most serious allegation is that the respondent was holding an office of profit as contemplated under Article 191 of the Constitution and therefore, he was disqualified from contesting the election. It is not in dispute that the respondent was appointed as a Notary by the State Government. That would be evident from Annexure B, which is a notification appointing the respondent as a Notary issued by the State Government. Annexure C shows that his name continued to be in the register maintained by the State even at the time of filing of nomination. Even though the respondent has a contention that during the relevant time, he had suspended his practice as an Advocate, there is no proof regarding the same and he continued to be a Notary having his name retained in the register of Notaries maintained by the State Government. 12. Even though the respondent has a contention that during the relevant time, he had suspended his practice as an Advocate, there is no proof regarding the same and he continued to be a Notary having his name retained in the register of Notaries maintained by the State Government. 12. The question that has to be tackled is whether office of Notary is an 'office of profit' as is envisaged under the above provision of the Constitution. 13. Sri. M.K.Damodaran, learned Senior Counsel appearing for the respondent, pointed out that by no stretch of imagination a Notary could be said to be occupying an 'office of profit'. It is pointed out that while it may be true that the Notary is appointed by the Government and that he may be removed by the Government, there ends the control of the Government. There is no office to which a Notary is appointed and a Notary is appointed for a term, after which he automatically ceases to be a Notary. The fact that the Notary is to maintain an office of his own does not mean that it is an office as contemplated under Art. 191 of the Constitution. Learned counsel went on to point out that even assuming that there is an office to which the respondent was appointed, it is not an 'office of profit'. The respondent derives no pecuniary benefits from the Government or from any other source which is an essential ingredient to fall within the ambit of the office of profit under Art. 191 of the Constitution of India. 14. Relying on several decisions, it was pointed out that in order to be an office, it has to exist independent of the person, who is holding the said office, and in the case on hand the appointment is co-terminus with expiry of the period as a Notary. It is not a post which can be occupied by successive persons. All that the Notary is entitled to is the prescribed fee and nothing more. He receives no allowance or any other pecuniary benefits from the State Government or the Central Government. It is not a post which can be occupied by successive persons. All that the Notary is entitled to is the prescribed fee and nothing more. He receives no allowance or any other pecuniary benefits from the State Government or the Central Government. In support of his contention, learned counsel relied on the decisions reported in Srimati Kanta Kathuria v. Manak Chand Surana, (1969)3 SCC 268 , K.B. Rohamare v. Shanker Rao Genuji Kolhe, (1975) 1 SCC 252 , Madhukar v. Jaswant, AIR 1976 SC 2283 , Shibu Soren v. Dayanand Sahay, (2001) 7 SCC 425 and Jaya Bachan v. Union of India, 2006(3) KLT 576 (SC) = AIR 2006 SC 2119 ). 15. Learned counsel appearing for the petitioner on the other hand contended that going by the tests laid down by the Apex Court in various decisions, it is very clear that Notary occupies an office of profit and therefore falls within the prohibition under Art. 191 of the Constitution of India. It is contended on behalf of the petitioner that it cannot be disputed that a Notary is appointed by the State Government and can be removed by the State Government. He is under the disciplinary control of the State Government. It is not necessary, that to fall within the scope of office of profit, the person concerned should get pecuniary benefits from the State Government itself. If as a matter of fact some pecuniary gain is attached to the office, and if the person concerned is entitled to draw the same, that would be sufficient. Learned counsel placed reliance on the decisions reported in Srimati Kanta Kathuria v. Manak Chand Surana, (1969) 3 SCC 268 , Madhukar G.E. Pankakar v. J.C. Rajani, (1977) 1 SCC 70 , Shibu Soren's Case, Narayanaswamy v. C.P. Thirunavukkarasu, (2000) 2 SCC 294 , Jaya Bachan v. Union of India, 2006 (3) KLT576 (SC) = AIR 2006 SC 2119 and Abdul Shakur v. Rikhab Chand, AIR 1958 SC 52 . Learned counsel also referred to the various provisions under the Notaries Act and Rules thereunder in support of his contention that the respondent at the relevant time occupied an office of profit. 16. Before going into the question as to whether the respondent occupied an office of profit, it will be useful to refer to the Notaries Act and Rules. Learned counsel also referred to the various provisions under the Notaries Act and Rules thereunder in support of his contention that the respondent at the relevant time occupied an office of profit. 16. Before going into the question as to whether the respondent occupied an office of profit, it will be useful to refer to the Notaries Act and Rules. S.3 of the Notaries Act, (hereinafter referred to as Act 53 of 1952) stipulates that the Central Government or the State Government may appoint as Notary any legal practitioner or person who possesses such qualifications as are prescribed. S.4 stipulates that the Government concerned is to maintain a register of Notaries. It also makes mention of the particulars that the register has to contain. S. 5 mentions that on payment of prescribed fee to the Government for appointing him as Notary, a person is entitled to have his name entered in the register and he is given a certificate authorising him to practice for five years from the date on which certificate is issued to him. S.5 also provides that the certificate may be renewed for five years. S.7 states that every Notary shall have and use a seal in the prescribed form and design. S.8 deals with the functions of the Notary. S.10 deals with the removal from the register of Notaries. It empowers the Government concerned to remove from the register maintained by it the name of a Notary, if he falls within any of the provisions contained therein. 17. Rule 8 of the Notaries Rules, 1956 stipulates the procedures for appointment of a Notary. Rule 10 stipulates the fees that a Notary is entitled to collect for notarial act. Rule 12 provides the form and design of the seal to be used by a Notary. 18. Having thus had a glimpse of the statutory provisions, it becomes necessary to ascertain whether a Notary holds an 'office of profit'. Arts.58, 66, 102 and 191 of the Constitution, which deal with the election of President, Vice President, Members of Parliament and Members of the Legislative Assembly and Legislative Council as the case may be contain the words 'office of profit'. Arts.58, 66, 102 and 191 of the Constitution, which deal with the election of President, Vice President, Members of Parliament and Members of the Legislative Assembly and Legislative Council as the case may be contain the words 'office of profit'. While in Arts 58 and 66, it extended to holding of an office of profit under any local or other authority subject to control of either the Central Government or State Government, in Arts 102 and 191 such a stipulation is conspicuously absent. Even though in the four articles the words 'office of profit' is used, neither the word 'office' nor the words 'office of profit' are seen defined either in the Constitution or anywhere else. One has to depend on precedents so as to ascertain what constitutes 'office of profit'. 19. As far as the case on hand is concerned, it is governed by Art. 191 of the Constitution of India. Going by the various decisions of the Apex Court, the test for finding out whether an office in question is an office under the Government or whether it is an office of profit or not, the following criterion is usually adopted: i)Whether the Government makes the appointment. ii)Whether the Government has right to remove or dismiss the holder. iii)Whether the Government pays the remuneration. iv)What are the functions of the holder? Does he perform them for the Government? and v)Does the Government exercises any control over the performance of those functions? 20. The object of the above Articles, namely, Arts.58,66,102 and 191 appears to be that the person, who is elected to the legislature, should be free to carry on his duties, obviously without being subjected to any kind of Governmental pressure. It is felt that if such a person holds an office and the Government has a voice in his continuation in that office, there is likelihood of such person succumbing to the wishes of the executive. The above articles are intended to eliminate the possibility of a conflict between duty and interest and to maintain the purity of the legislature. Though the issue may appear to be very simple, its solution appears to be rather complicated. The above articles are intended to eliminate the possibility of a conflict between duty and interest and to maintain the purity of the legislature. Though the issue may appear to be very simple, its solution appears to be rather complicated. The twin questions are what is an 'office' and whether an 'office', in order to be characterised as an 'office of profit', should satisfy all the conditions mentioned above or any one of them is decisive, has been a subject matter of several decisions of the Apex Court. 21. In the decision reported in Kanta Kathuria v. Manak Chand ( AIR 1970 SC 694 ) the issue was considered at length. The decision considered as to what is meant by 'office' and what is meant by an "office of profit'. In the said case, one Smt. Kanta Kathuria contested for the State Legislative Assembly election. She was elected. Her election was challenged on the ground that at the relevant time, she held an office of profit under the State Government. 22. The facts of the case show that Smt. Kanta Kathuria was appointed by the Government of Rajasthan as a Special Government Pleader to conduct arbitration cases between the Government and Modern Construction Company arising out of the construction of Rana Pratap Sagar Dam and Jawahar Sagar Dam. She was to be paid a remuneration of ? 150/- per day for each date of hearing and ? 75/- per day for days of travel and dates on which the case was adjourned and days spent on preparation of the case. It was found that as on the date of filing of the nomination, the arbitration proceedings were still continuing. The Constitutional Bench consisting of five Judges considered the issue. Two of the Judges held that Smt. Kanta Kathuria did held an office of profit. But the majority held otherwise. Referring to Justice Rowlatt's definition in (1922) 8 Tax Case 231 it was held as follows: "The word "office" has various meanings depending, upon its context. The words 'its holder' occurring in Art. 191(1)(a), indicate that there must be an office which exists independently of the holder of the office. Further, the very fact that the Legislature of the State has been authorised by Art. 191 to declare an office of profit not to disqualify its holder, contemplates existence of an office apart from its holder. The words 'its holder' occurring in Art. 191(1)(a), indicate that there must be an office which exists independently of the holder of the office. Further, the very fact that the Legislature of the State has been authorised by Art. 191 to declare an office of profit not to disqualify its holder, contemplates existence of an office apart from its holder. In other words, the Legislature of a State is empowered to declare that an office of profit of a particular description or name would not disqualify its holder and not that a particular holder of an office of profit would not be disqualified." 23. After referring to the provisions of the C.P.C., it was held that since Smt. Kanta Kathuria was appointed only to assist an Advocate in the particular case, O.21 R.4 C.P.C. has no application. Referring to the object of Article 191, it was observed as follows: "It is not necessary to give a wide meaning to the word "office" because if Parliament thinks that a legal practitioner who is being paid fees in a case by the Government should not be qualified to stand for an election as a Member of Legislative Assembly, it can make that provision under Art. 191 (1)(a) of the Constitution." However, in the said case, in the meanwhile, the State Government had brought in a legislation declaring retrospectively exempting the office such as the nature held by Smt. Kanta Kathuria from the ambit of Article 191 of the Constitution. That was held to be valid. 24. The issue was considered in the decision reported in Mathukar G. E. Pankakar v. J. C. Rajani, (1977) 1 SCC 70 . In the said case, Dr. Pankakar succeeded in the election to the Municipal Council. His election was challenged on the ground that he was disqualified under S. 16(1)(g) of the Maharashtra Municipalities Act, which stipulated that a candidate, as on the date of his nomination, if he was holding an 'office of profit' under the Government, he is disqualified from contesting the election. At the relevant time, the returned candidate was working as one in the Panel of doctors appointed under the ESI Scheme. After referring to a lot of literature as to what constitutes an office etc., it was held as follows: "22. Back to the issue of 'office of profit'. At the relevant time, the returned candidate was working as one in the Panel of doctors appointed under the ESI Scheme. After referring to a lot of literature as to what constitutes an office etc., it was held as follows: "22. Back to the issue of 'office of profit'. If the position of an insurance medical officer is an 'office', it actually yields profit or at least probably may. In this very case the appellant was making sizeable income by way of capitation fee from the medical services, rendered to insured employees. The crucial question then is whether this species of medical officers are holding 'office' and that 'under Government'. There is a haphazard heap of case law about these expressions but they strike different notes and our job is to orchestrate them in the setting of the statute. After all, all law is a means to an end. What is the legislative end here in disqualifying holders of "offices of profit under Government? Obviously, to avoid a conflict between duty and interest, to cut out the misuse of official position to advance private benefit and to avert the likelihood of influencing Government to promote personal advantage. So this is the mischief to be suppressed. At the same time we have to bear in mind that our Constitution mandates the State to undertake multiform public welfare and socioeconomic activities involving technical persons, welfare workers, and lay people on a massive scale so that participatory Government may prove a progressive reality. In such an expanding situation, can we keep out from elective posts at various levels many doctors,lawyers, engineers and scientists, not to speak of an army of other non-officials who are wanted in various fields, not as full-time government servants but as part-time participants in people's projects sponsored by Government? For instance, if a National Legal Services Authority funded largely by the State comes into being, a large segment of the legal profession may be employed part-time in the ennobling occupation of legal aid to the poor. Doctors, lawyers, engineers, scientists and other experts may have to be invited into local bodies, legislatures and like political and administrative organs based on election if these vital limbs of representative Government are not be the monopoly of populist politicians or lay members but sprinkled with technicians in an age which belongs to technology. Doctors, lawyers, engineers, scientists and other experts may have to be invited into local bodies, legislatures and like political and administrative organs based on election if these vital limbs of representative Government are not be the monopoly of populist politicians or lay members but sprinkled with technicians in an age which belongs to technology. So, an interpretation of 'office of profit' to cast the net so wide that all our citizens with specialities and knowhow are inhibited from entering elected organs of public administration and offering semi voluntary services in para official, statutory or like projects run or directed by Government or corporations controlled by the State may be detrimental to democracy itself. Even athletes may hesitate to come into Sports Councils if some fee for services is paid and that proves their funeral if elected to a panchayat. A balanced view, even if it involves 'judicious irreverence' to vintage precedents, is the wiser desideratum." In paragraph 33, the decision in Shivamurthy Swami v. Veerabhadrappa, (1971) 3 SCC 870 was referred to and the test to be applied was adverted to. Ultimately, it was held as follows: "Shivamurthy Swami clears the ground for the discussion by going to the basics which determine what is an office of profit under Government. Those tests are - i) Whether the Government makes the appointment; ii) Whether the Government has right to remove or dismiss the holder; iii) Whether the Government pays the remuneration; iv) What are the functions of the holder? Does he perform them for the Government? and v) Does the Government exercises any control over the performance of those functions? Applying the decision in the said case, it was held that the returned candidate was not disqualified. 25. The issue was again considered in the decision reported in Shibu Soren v. Dayanand Sahay, AIR 2001 SC 2582 , which is popularly known as Shibu Soren's case. There, the returned candidate was holding the office of Chairman of the Interim Jharkhand Area Autonomous Council at the time of filing of his nomination. The question arose was whether by virtue of holding an 'office of profit' under the State Government, was he disqualified from contesting the election. After referring to a large number of decisions, it was held that applying the test the returned candidate did occupy an office of profit. The question arose was whether by virtue of holding an 'office of profit' under the State Government, was he disqualified from contesting the election. After referring to a large number of decisions, it was held that applying the test the returned candidate did occupy an office of profit. In the said decision, it was held as follows: "The question whether a person holds an office of profit, is required to be interpreted in a realistic manner having regard to the facts and circumstances of each case and relevant statutory provisions. While a strict and narrow construction, may not be adopted which may have the effect of 'shutting off many prominent and other eligible persons to contest the elections' but at the same time "in dealing with a statutory provision which imposes a disqualification on a citizen it would be unreasonable to take merely a broad and general view and ignore the essential points." 26. In the decision reported in M. V. Rajasekharan v. Vatal Nagaraj, AIR 2002 SC 742 , the issue as to whether a person, who was appointed as an one man commission for a particular purpose could be said to be occupied an 'office of profit'. The issue that arose for consideration was whether the creation or constitution of an one man commission for the purpose of holding an enquiry and appointment of an individual as the said commission and providing the money necessary for disbursement of salary and other allowances of such Commission would make the Commission an 'office of profit' within the ambit of Art. 191 of the Constitution and whether the holder of such a Commission can be said to be holding an 'office of profit'. 27. Dealing with the question, the Apex Court observed that the court is required to find out whether there exists any nexus between the duties discharged by the candidate and the Government and that a conflict is bound to arise between impartial discharge of such duties in the course of his employment with the duties which he is required to discharge as a member of legislature on being elected. 28. After referring to Kanta Kathuria's case, Rabindra Kumar Nayak's case and Madhukar G.E. Pankakar's case, it was held that in the case on hand applying the tests in the various cases, the person concerned too occupies an 'office of profit'. 28. After referring to Kanta Kathuria's case, Rabindra Kumar Nayak's case and Madhukar G.E. Pankakar's case, it was held that in the case on hand applying the tests in the various cases, the person concerned too occupies an 'office of profit'. However, it was observed as follows: "A conspectus of the aforesaid decisions of this Court unequivocally therefore, indicate that the question has to be answered depending upon the facts peculiar to the case in hand with the object of finding out whether in fact the Government retain some control over the post which the incumbent was holding at the time of filing of nomination and was there any profit' attached to the post in question. The underlined idea obviously is, that it should be free from any pressure from the Government so that there can be no conflict in discharge of his independent duties as a member of the Legislative Assembly or the Legislative Council." 29.In the decision reported in Rabindra Kumar Nayak v. Collector, Mayurbhanj, Orissa, (1999) 2 SCC 627 the question as to what constitutes an office of profit was considered in relation to the Orissa Panchayat Samiti Act, 1959, wherein there is a similar provision. It appears that the candidate, who contested for election was at the relevant time, was functioning as Assistant Public Prosecutor. The question was whether he was holding an 'office of profit'. Noticing that there was a permanent office of an Assistant Public Prosecutor, income and profit were accrued from that office and the appellant held that office, it is held that he fell within the ambit of disqualification. It was held as follows: "From the above discussion it follows that to incur disqualification under S. 45(1)(i) of the Act it must be shown that (i) there was a permanent office of Assistant Public Prosecutor; (ii) income or profit accrued from that office, and (iii) the appellant held that office. Now adverting to the facts of this case, there is no controversy that permanency is attached to the post of Assistant Public Prosecutor and appointment to that office is regulated by the Rules which deal with the remuneration of the Law Officers. It is immaterial that the appellant did not in fact receive any fee. Requirements (i) and (ii) are, therefore, satisfied. It is immaterial that the appellant did not in fact receive any fee. Requirements (i) and (ii) are, therefore, satisfied. The appointment of the appellant as a Law Officer-Assistant Public Prosecutor under the Rules would satisfy the third requirement as well." 30. In the decision reported in Satrucharla Chandrasekhar Raju v. Vyricherla Pradeep Kumar Dev, AIR 1992 SC 1959 , the question considered was whether a teacher of a school run by a registered society and appointed by the society over which the Government has control would be occupying an 'office of profit'. After referring to the decisions reported in Kona Prabhakar Rao v. M. Seshagiri Rao, AIR 1981 SC 658 , Gurugobinda Basu v. Sankari Prasad Ghosal, AIR 1964 SC 254 , D.R.Gurushantappa v. Abdul Khaddus Anwar, AIR 1969 SC 744 , Karbhari Bhimqji Rohamare v. Shanker Rao Genuji Kolhe, AIR 1975 SC 575 , Ashok Kumar Bhattacharyya v. Ajoy Biswas, AIR 1985 SC 211 , Shivamurthy Swami, Inamdar v. Agadi Sanganna Andanappa, (1971) 3 SCC 870 and Madhuker G.E, Pankakar v. Jaswant Chobbildas Rajani, AIR 1976 SC 2283 it was held as follows: "23. What emerges from the above discussion is that the Government has some control over the ITDA which is set up as a project, since it provides funds and sanctions the posts; the District Collector is appointed as Project Officer and some officers are ex officiomembers of the ITDA which carries out the object of providing the compulsory education in tribal areas. But the ITDS is a registered society having its own constitution. Though the Project Officer is the District Collector, he acts as a different entity. The power to appoint or to remove teachers is not with the Government but with the Project Officer. The Government may have control over the appointing authority but has no direct control over the teachers. The small post that appellant holds in ITDA is only that of a teacher who is directly under the control of the Project Officer. In such a situation the question of any conflict between his duties and interests as an elected member does not arise since it cannot be said that he, as a teacher, can be subjected to any kind of pressure by the Government which has neither the power to appoint him nor to remove him from service. In such a situation the question of any conflict between his duties and interests as an elected member does not arise since it cannot be said that he, as a teacher, can be subjected to any kind of pressure by the Government which has neither the power to appoint him nor to remove him from service. Taking a practical view of the substance of these factors into consideration, we are of the view that the appellant cannot be held to be holding an office of profit under the Government." 31. Construing the words 'office of profit' in the decision reported in Jaya Bachan v. Union of India, 2006 (3) KLT 576 (SC) = AIR 2006 SC 2119 , it was held as follows: "An office of profit is an office which is capable of yielding a profit or pecuniary gain. The question whether a person holds an office of profit is required to be interpreted in a realistic manner. Nature of the payment must be considered as a matter of substance rather than of form. Nomenclature is not important. In fact, mere use of the word 'honorarium' cannot take the payment out of the purview of profit, if there is pecuniary gain for the recipient. Payment of honorarium , in addition to daily allowances in the nature of compensatory allowances, rent free accommodation and chauffeur driven car at State expense, are clearly in the nature of remuneration and a source of pecuniary gain and hence constitute profit. For deciding the question as to whether one is holding an office of profit or not, what is relevant is whether the office is capable of yielding a profit or pecuniary gain and not whether the person actually obtained a monetary gain. If the 'pecuniary gain' is 'receivable' in connection with the office, then it becomes an office of profit irrespective of whether such pecuniary gain is actually received or not". After referring to various other decisions, the Apex Court, on facts of the case, held that even assuming that the incumbent was not availing of the various pecuniary benefits available to the office, still it has to be held that the incumbent holds an 'office of profit' if it is capable of yielding pecuniary benefits. 32. After referring to various other decisions, the Apex Court, on facts of the case, held that even assuming that the incumbent was not availing of the various pecuniary benefits available to the office, still it has to be held that the incumbent holds an 'office of profit' if it is capable of yielding pecuniary benefits. 32. In the decision reported in K.B. Rohamare v. Shanker Rao Genuji Kolhe, (1975) 1 SCC 252 , the question as to whether a Wage Board Member occupies an 'office of profit' was considered. It was found that the Wage Board exercises a part of the judicial power of the State. In the said decision it was held as follows: "As regards the office being under the State Government, the first respondent was appointed by the Government and the Government could either continue him in that office or revoke his appointment at their discretion. The position satisfies all the five tests laid down in Shivamurthy Swamy Case. The power exercised by the Wage Board is essentially apart of the judicial power of the State and the Wage Board is appointed to exercise that power. Therefore the first respondent did hold an office under the Government." 33. In the decision reported in Abdul Shakur v. Rikhab Chand, AIR 1958 SC 52 it was held as follows: "12. No doubt the Committee of the Durgah Endowment is to be appointed by the Government of India but it is a body corporate with perpetual succession acting within the four corners of the Act. Merely because the committee or the members of the committee are removable by the Government of India or the committee can make bye-laws prescribing the duties and powers of its employees cannot in our opinion convert the servants of the committee into holders of office of profit under the Government of India. The appellant is neither appointed by the Government of India nor is removable by the Government of India nor is he paid out of the revenues of India. The appellant is neither appointed by the Government of India nor is removable by the Government of India nor is he paid out of the revenues of India. The power of the Government to appoint a person to an office of profit or to continue him in that office or revoke his appointment at their discretion and payment from out of Government revenues are important factors in determining whether that person is holding an office of profit under the Government though payment from a source other than Government revenue is not always a decisive factor." 34. Having thus viewed the various decisions, it has now to be considered whether applying the tests available from the above decisions, a Notary occupies an office of profit. It has to be first noticed that there is no office as such. 35. Learned counsel appearing for the petitioner highlighted that the Notary has to maintain an office as per the Notaries Act and that would be an office as envisaged under Art. 191 of the Constitution. 36. It is difficult to accept the above contention. The word 'office' that is envisaged under Art. 191 of the Constitution is not an Advocate's office or the office of a Notary. It should be an office established under the Central or State Government and must exist independent of its holder. If that test is to be applied, the office which a Notary is to be maintained as per the Notaries Act cannot be treated as an office falling within the ambit of Art. 191 of the Constitution. 37. The first question that one has to address is whether the Notary holds an office under the Government and whether the Government has the power to appoint and remove the person from that office. As already noticed, it could not be said that the Notary occupies an office though he is appointed by the Government and he is liable to be removed by theGovernment on certain enumerated circumstances under the Notaries Act. On this ground alone, the issue could be answered in favour of the respondent. However, learned counsel appearing for the petitioner in the election petition referred to the decision reported in M.V. Rajasekharan v. Vatal Nagaraj, AIR 2002 SC 742 and pointed out that an one man commission was held to occupy an office though the office was coterminous with the culmination of the enquiry. 38. However, learned counsel appearing for the petitioner in the election petition referred to the decision reported in M.V. Rajasekharan v. Vatal Nagaraj, AIR 2002 SC 742 and pointed out that an one man commission was held to occupy an office though the office was coterminous with the culmination of the enquiry. 38. The said decision stands on an entirely different footing. That is a statutory post created under the relevant statute and the incumbent was given a Cabinet rank along with various emoluments and allowances. It was under those circumstances, it was held that the said person occupied an 'office of profit'. That principle cannot be extended to the case of a Notary. 39. It shall now be considered whether he was occupying an office of profit. Before going further, one may recollect the tests that are to be applied. They are, (i) the Government makes the appointment, (ii) the Government has right to remove the holder, (iii) Whether the Government pays the remuneration, (iv) What are the functions of the holder? Does he perform them for the Government? (v) Does the Government exercises any control over the performance of those functions? 40. A reading of the decisions already cited would show that the totality of the facts and circumstances had to be viewed in the light of the relevant provisions of the relevant Acts and inference has to be drawn whether the office can be termed as 'office of profit'. One may remember here that the intention behind the prohibition is to prevent the holding of such office that the Government would be in a position to influence the person with regard to his exercise of right of independent function as a member of the legislature. 41. It is true that it has been held that it is not necessary that the fund should come from the Government itself. But the payment must have some link to the State fund. Or in other words, the profit that is attached to the office must come from the State funds. Admittedly Notary is not remunerated by the State nor does he draw any allowance from the State fund. He has no allowance, no honorarium and no other facilities provided either by the State or Central Government as the case may be. All that he gets is the statutory fees for the acts of notarisation. 42. Admittedly Notary is not remunerated by the State nor does he draw any allowance from the State fund. He has no allowance, no honorarium and no other facilities provided either by the State or Central Government as the case may be. All that he gets is the statutory fees for the acts of notarisation. 42. Emphasis was laid by the learned counsel for the petitioner that the seal used by the Notary shows that he is holding an 'office of profit'. 43. It is far from so. The seal used by the Notary only shows his authority to act as a Notary. He cannot be deemed to perform an act of the Government. He is not a delegatee of the State. The word 'profit' connotes the idea of pecuniary gain, quantum of which is irrelevant. It cannot be said that the Notary appointed gives him pecuniary benefits by virtue of the office he holds. At the risk of repetition, one may notice that he is not appointed to any office as such. Finally, it has been held that the question whether a person holds an office of profit is to be interpreted in a realistic manner having regard to the facts and circumstances of each case and relevant statutory provisions. While a strict and narrow construction is not to be adopted, it would be unreasonable to take a broad, general view ignoring the essential aspects. Applying the tests, it follows that the Notary does not occupy an 'office of profit' either under the State or Central Government. The issue has to necessarily go in favour of the respondent in this petition. 44. The next ground that is urged is the violation of S.38 of the Act and Rr.8 and 10 of the Conduct of Election Rules. As already noticed, the first list of candidates published is Annexure C. S.38 reads as follows: "38. Publication of list of contesting candidates.- (1) Immediately after the expiry of the period within which candidatures may be withdrawn under sub-section (1) of Section 37, the returning officer shall prepare and publish in such form and manner as may be prescribed a list of contesting candidates, that is to say, candidates who were included in the list of validly nominated candidates and who have not withdrawn their candidature within the said period. (2) For the purpose of listing the names under sub-section (1), the candidates shall be classified as follows namely:- (i)candidates of recognised political parties (ii)candidates of registered political parties other than those mentioned in clause (i); (iii)other candidates. (3) The categories mentioned in sub-section (2) shall be arranged in the order specified therein and the names of candidates in each category shall be arranged in alphabetical order and the addresses of the contesting candidates as given in the nomination papers together with such other particulars as may be prescribed." 45. Rule 8 of the Conduct of Election Rules stipulates that the list of validly nominated candidates shall be in Form 4. That seems to be a tentative list. If there are any errors or any particulars given therein are not correct, the candidate therein can apply for correction. The list of the contesting candidates is to be prepared under R. 10 and that has to be either in Form 7A or Form 7B as the case may be and it shall be in one of the languages as the election commission may direct. 46. In the case on hand, Annexure C is the first list published in Form 7A. Thereafter, another list was published, which is produced as Annexure D, which is also in Form 7A. The complaint is that once having published a list in Form 7A, there is no power in the authority concerned to vary the list so published and to draw up a fresh list. The complaint is that by doing so unfair advantage has been gained by the respondent. 47. Learned counsel for the petitioner pointed out that S. 38 of the Act and Rules 8 and 10 of the Conduct of Election Rules will have to be properly construed and if that is done, it can be seen that there is violation of provisions of Act and Rules. 48. Learned counsel appearing for the respondent tried to counter the above contentions by pointing out that no prejudice has been caused to the petitioner by the publication of Annexure D. His position has not undergone any change and Annexure D published is in consonance with the mandate contained in S. 38 of the Rules. It was further contended that even assuming that there is violation and it falls within the ambit of S. 100(1)(d)(iv). It was further contended that even assuming that there is violation and it falls within the ambit of S. 100(1)(d)(iv). There is no averment in the petition that by the said violation of the provisions of the Act and Rules, the election of the respondent has been materially affected. 49. Learned counsel for the respondent drew the attention of this court to the averments in the petition. The averments are contained in paragraphs 7,8,9 and 10 of the petition and grounds E and F of the petition. Learned counsel would point out that the averments made in the petition regarding this aspect is far from satisfactory and does not meet the requirements of pleadings in an election petition. The petitioner will have to specifically plead the facts necessary to constitute the ground and he has to mention the necessary facts which would show that by virtue of the so called violation, the election of the respondent has been materially affected. According to the learned counsel, it is one thing to say that the election of the respondent is materially affected and it is quite another thing to say that the election to the Angamaly Assembly Constituency has been materially affected. The two, according to the learned counsel for the respondent, are entirely different. Learned counsel also drew the attention of this court to the fact that as long as there is no prayer for declaration that the petitioner be declared elected by setting aside the election of the first respondent, a strict interpretation will have to be given to the provisions. 50. In support of his contention that material facts will have to be stated in the petition so as to enable the respondent to answer the same, learned counsel relied on the decision reported in Ram Sukh v. Dinesh Aggarwal, AIR 2010 SC 1227 it was held as follows: "11. As already noted, it is mandatory that all "material facts" are set out in an election petition and it is also trite that if material facts are not stated in the petition, the same is liable to be dismissed on that ground alone. Therefore, the question is as to whether the election petitioner has set out "material facts" in his petition? 12. Therefore, the question is as to whether the election petitioner has set out "material facts" in his petition? 12. The phrase "material facts" has neither been defined in the Act nor in the Code and, therefore, it has been understood by the courts in general terms to mean the entire bundle of facts which would constitute a complete cause of action. In other words, "material facts" are facts upon which the plaintiffs cause of action or defendant's defence depends Broadly speaking, all primary or basic acts which are necessary either to prove the cause of action by the plaintiff or defence by the defendant are "material facts". Material facts are facts, which if established, would give the petitioner the relief asked for. But again, what 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. 13.The requirement in an election petition as to the statement of material facts and the consequences of lack of such disclosure with reference to Ss.81,83 and 86 of the Act came up for consideration before a three-Judge Bench of this Court in Samant N. Balakrishnan v.George Fernandez. Speaking for the three-Judge Bench, M. Hidayatullah, C.J. inter alia,laid down that: (i) S.83 of the Act is mandatory and requires first a concise statement of material facts and then the fullest possible particulars; (ii) omission of even a single material fact leads to an incomplete cause of action and statement of claim becomes bad; (iii) the function of particulars is to present in full a picture of the cause of action and to make the opposite party understand the case he will have to meet; (iv) material facts and particulars are distinct matters - material facts will mention statements of fact and particulars will set out the names of persons with date, time and place and (v) in stating the material facts it will not do merely to quote the words of the Section because then the efficacy of the material facts will be lost. 14.At this juncture, in order to appreciate the real object and purport of the phrase "material facts", particularly with reference to election law, it would be appropriate to notice distinction between the phrases "material facts" as appearing in clause (a) and "particulars" as appearing in clause (b) of sub-section (1) of S. 83. 14.At this juncture, in order to appreciate the real object and purport of the phrase "material facts", particularly with reference to election law, it would be appropriate to notice distinction between the phrases "material facts" as appearing in clause (a) and "particulars" as appearing in clause (b) of sub-section (1) of S. 83. As stated above, "material facts" are primary or basic facts which have to be pleaded by the petitioner to prove his cause of action and by the defendant to prove his defence. "Particulars", on the other hand, are details in support of the material facts, pleaded by the parties. 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. Unlike "material facts" which provide the basic foundation on which the entire edifice of the election petition is built, "particulars" are to be stated to ensure that opposite party is not taken by surprise." 51. In the decision reported in Anil Vasudev Salgaonkar v. Naresh Kushali Shigaonkar, (2009) 9 SCC 310 it was held as follows: "It is settled legal position that all "material facts" must be pleaded by the party in support of the case set up by him within the period of limitation. 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. Whether in an election petition a particular fact is material or not and as such is required to be pleaded is dependent on the nature of the charge levelled and the circumstances of the case. All the facts which are essential to clothe even a single material fact would amount to disobedience of the mandate of S.83(1)(a). The election petition must contain a concise statement of "material facts" on which the petitioner relies." 52. Countering the above argument of the learned counsel for the respondent, learned counsel appearing for the petitioner referred to the decision reported in Jagjit Singh v. Dharam Pal Singh, (1995) Supp. The election petition must contain a concise statement of "material facts" on which the petitioner relies." 52. Countering the above argument of the learned counsel for the respondent, learned counsel appearing for the petitioner referred to the decision reported in Jagjit Singh v. Dharam Pal Singh, (1995) Supp. (1) SCC 422 wherein it was held as follows: "The trial Judge has held that since there is no averment in the petition that the result of the election was materially affected by improper rejection or acceptance of votes, it is devoid of cause of action. We are unable to agree that the absence of such an averment in the facts of this case is fatal. As pointed out by this Court, there may be cases where the obvious conclusion to be drawn from the circumstances is that the result of the election has been materially affected and that S.100(1)(d) of the Act is not intended to provide a convenient technical plea in a case where there can be no dispute at all about the result of the election being materially affected by the alleged infirmity. In the present case, the appellant in the election petition has stated that he has lost by a margin of 80 votes only. From the various averments in the election petition it was evident that the number of valid votes of the appellant which are alleged to have been improperly rejected is much more than 80. From the averments contained in the election petition it is thus obvious if the appellant succeeds in establishing his case as set out in the election petition the result of this election, insofar as it concerns the returned candidate, would be materially affected." 53. Based on the above decision, it was contended that the mere fact that there is no averment that the election of the respondent has been materially affected is of no consequence. 54. A close scrutiny of the decisions relied on by the learned counsel for the petitioner shows that all material facts were available in the petition and the only deficiency was that the exact words the election has been materially affected' were omitted. That would be clear from a reading of the above decision, especially paragraph 21 of the decision referred to by the learned counsel for the petitioner. 55. That would be clear from a reading of the above decision, especially paragraph 21 of the decision referred to by the learned counsel for the petitioner. 55. It is evident from a reading of S. 100 of the Act that in a case falling within the ambit of S. 100 (1)(d), apart from establishing any one of the grounds mentioned therein, there is an added burden on the petitioner to plead and prove that by virtue of the violation made mention of therein, the election of the returned candidate has been materially affected. The material facts necessary to attract the provision will have to be pleaded and evidence will have to be adduced to substantiate those allegations. However, pleadings in an election petition are to be construed very strictly and it has been held that if any particular ground is not supported by particular facts, that cannot be looked into at all. 56. Therefore, for want of material facts regarding the allegation of violation of S.38 and Rr.8 and 10 of the Conduct of Election Rules, that ground cannot survive. 57. As regards the third ground, namely, poster issue is concerned, even assuming it to be true, that does not provide a ground for setting aside the election. Learned counsel for the petitioner was unable to point out any provision or any decision, even assuming that the allegations of the petitioner are true. It is well settled that an election can be set aside only on any one of the grounds enumerated in S. 100 of the Act and it is not possible for the court to import any grounds for upsetting the election. 58. Learned counsel appearing for the petitioner then contended that a summary rejection of the petition is contemplated only under S.86 of the Act and that provision does not provide for summary rejection of an election petition on the grounds now urged by the respondent. Section 86 of the Act reads as follows: "86. Trial of election petitions.- The High Court shall dismiss an election petition which does not comply with the provisions of S.81 or S.82 or S. 117. Explanation.- An order of the High Court dismissing an election petition under this subsection shall be deemed to be an order made under clause (a) of Section 98. Trial of election petitions.- The High Court shall dismiss an election petition which does not comply with the provisions of S.81 or S.82 or S. 117. Explanation.- An order of the High Court dismissing an election petition under this subsection shall be deemed to be an order made under clause (a) of Section 98. (2)As soon as may be after an election petition has been presented to the High Court, it shall be referred to the Judge or one of the Judges who has or have been assigned by the Chief Justice for the trial of election petitions under sub-section (2) of Section 80A. (3)Where more election petitions than one are presented to the High Court in respect of the same election, all of them shall be referred for trial to the same Judge who may, in his discretion, try them separately or in one or more groups. (4)Any candidate not already a respondent shall, upon application made by him to the High Court within fourteen days from the date of commencement of the trial and subject to any order as to security for costs which may be made by the High Court, be entitled to be joined as a respondent. Explanation.- For the purposes of this sub-section and of Section 97, the trial of a petition shall be deemed to commence on the date fixed for the respondents to appear before the High Court and answer the claim or claims made in the petition. (5)The High Court may, upon such terms as to costs and otherwise as it may deem fit, allow the particulars of any corrupt practice alleged in the petition to be amended or amplified in such manner as may in its opinion be necessary for ensuring a fair and effective trial of the petition, but shall not allow any amendment of the petition which will have the effect of introducing particulars of a corrupt practice not previously alleged in the petition. (6)The trial of an election petition shall, so far as is practicable consistently with the interests of justice in respect of the trial, be continued from day to day until its conclusion, unless the High Court finds the adjournment of the trial beyond the following day to be necessary for reasons to be recorded. (6)The trial of an election petition shall, so far as is practicable consistently with the interests of justice in respect of the trial, be continued from day to day until its conclusion, unless the High Court finds the adjournment of the trial beyond the following day to be necessary for reasons to be recorded. (7)Every election petition shall be tried as expeditiously as possible and endeavour shall be made to conclude the trial within six months from the date on which the election petition is presented to die High Court for trial." 59. It cannot be read in isolation. S.87 of the Act provides for the procedure to be followed by the High Court and it makes the provisions of the C.P.C. applicable to the election petition. The issue as to whether for want of material facts, cause of action or triable issue, a petition can be dismissed at the threshold itself was considered in the decision reported in V. Narayanaswamy v. CP. Thirunavukkarasu, (2000) 2 SCC 294 wherein it was held as follows: "The election petition read as a whole did not disclose any cause of action or triable issue. Considering the facts of the case and the principles of law applicable, the election petition was rightly dismissed by the High Court in limine." 60. That this court has the power to reject a petition at the threshold itself is concluded by the decision in Sapna v. United India Insurance Company Limited (2008) 7 SCC 613 ) wherein it was held as follows: "21. The learned Single Judge, after review of the allegations contained therein has rightly concluded that these allegations are no precise allegations so as to show that these are serious allegations to be tried in the election petition. The learned Single Judge has gone through all these allegations and it also appears to us to be most unbelievable and impracticable sequence of events. It is easy to allege without giving the detailed particulars whether the whole thing transpired within a hearing distance. We are in full agreement with the view taken by the learned Single Judge and we are of the opinion that the learned Single Judge has correctly appreciated that this case lacks in particularity, any allegation of bribery as contained in S. 123 read with S.83 of the Act. 22. The appellant in person has taken us through various decisions of this court. 22. The appellant in person has taken us through various decisions of this court. The following are the list of cases cited by the appellant. (i) Roop Lal Sathi v. Nachhattar Singh Gill, (1982)3 SCC 487 (ii) F.A.Sapa v. Singora, (1991) 3 SCC 375 (ui) T.M.Jacob v. C.Poulose, 1999)4 SCC 274 (iv) Sardar Harcharan Singh Brar v. Sikh Darshan Singh, (2004) 11 SCC 196 (v) Harkirat Singh v. Amrinder Singh, (2005) 13 SCC 511 . No useful purpose will be served by referring to all these cases. The ratio of all these cases is that the election petition should contain the allegation of bribery in a concise manner within material particulars. Material particulars disclosed in the petition as mentioned above, are not sufficient to be gone into for trail. We are in full agreement with the view taken by the learned Single Judge. Therefore, we find no merit in the appeal and the same is dismissed." 61. In Samar Singh v. Kedal Nath, AIR 1987 SC 1926 , the Apex Court has held as follows: "If an election petition does not disclose cause of action, it can be dismissed summarily at the threshold of the proceeding under O.7 R.11 of the Code of Civil Procedure. If an election petition can be summarily rejected at the threshold of the proceeding, the same can also be rejected at any state of subsequent proceeding. If, after framing of issues, basic defect in the election petition persists (absence of cause of action) it is always open to the contesting respondent to insist that tine petition be rejected, under O.7 R.11 and the Court would be acting within its jurisdiction, in considering the objection. O.7 R. 11 does not place any restriction or limitation on the exercise of Court's power; it does not either expressly or by necessary implication provide that power under O.7 R.11 CPC should be exercised at a particular stage only. In the absence of any restriction placed by the statutory provision, it is open to the court to exercise that power at any stage. While it is true that ordinarily preliminary objection as to maintainability of the petition on the ground of absence of cause of action should be raised by the respondent as early as possible but if a party raises objections after filing written statement, the preliminary objection cannot be ignored. While it is true that ordinarily preliminary objection as to maintainability of the petition on the ground of absence of cause of action should be raised by the respondent as early as possible but if a party raises objections after filing written statement, the preliminary objection cannot be ignored. If the election petition doe's not disclose any cause of action, the respondent's right to raise objection to the maintainability of the petition or the court's power to consider the objection is not affected adversely merely because the objection is raised after filing of written statement or framing of issues. The court would be acting within its jurisdiction in exercise of its power under O.7 R.11 in rejecting the same even after settlement of issues. AIR 1963 Guj.79 overruled." From the above discussion, it follows that if the election petition does not disclose any cause of action or any triable issue, it is liable to be summarily rejected or dismissed. For the reasons already stated, the election petition stands rejected, as it does not disclose any cause of action or triable issue.

Johny Nelloor v. Jose Thettayil