Judgment : V.K. Sharma, J. It is proposed to dispose of issue Nos. 3 to 7 as extracted below, which have been treated as preliminary issues in this election petition filed by the petitioner, runner up candidate, under Sections 80 and 81 of the Representation of People Act, 1951 (in short ‘1951 Act’), calling in question the election of respondent No.1, returned candidate, from 36- Bhoranj (SC) Constituency of H.P Legislative Assembly held in 2012:- “3). Whether the copy of the petition supplied to respondent No.1 is not a true copy of the original petition and if so, its effect? …OPR-1. 4) Whether the petition has not been properly verified and supported by a proper affidavit in accordance with law and if so, its effect? ..OPR-1. 5) Whether the election petition is liable to be dismissed for lack of material facts and particulars? …..OPR-1. 6) Whether the petitioner has no cause of action and the petition is liable to be dismissed on this count? …..OPR-1. 7) Whether the election petition suffers from mis-joinder of parties and if so, its effect? …OPR-1.” 2. Whereas the petitioner contested the election as a Congress candidate, respondent No.1 was put up by Bhartiya Janta Party (BJP). On counting of votes held on 20.12.2012, respondent No.1, who polled 27333 votes, was declared elected, followed by the petitioner, who got 16918 votes, the margin being 10415 votes. 3. The challenge to the election of respondent No.1 is based solely on the corrupt practice referred to under sub section (7) of Section 123 read with Section 100 (1) (b) and (d) (iv) of the 1951 Act. 3. The challenge to the election of respondent No.1 is based solely on the corrupt practice referred to under sub section (7) of Section 123 read with Section 100 (1) (b) and (d) (iv) of the 1951 Act. Both the provisions are extracted below for ready reference:- Section 123 (7)- “(7) The obtaining or procuring or abetting or attempting to obtain or procure by a candidate or his agent or, by any other person [with the consent of a candidate or his election agent], any assistance (other than the giving of vote) for the furtherance of the prospects of that candidate's election, [from any person whether or not in the service of the Government] and belonging to any of the following classes, namely:— (a) gazetted officers; (b) stipendiary judges and magistrates; (c) members of the armed forces of the Union; (d) members of the police forces; (e) excise officers; (f) revenue officers other than village revenue officers known as lambardars, malguzars, patels, deshmukhs or by any other name, whose duty is to collect land revenue and who are remunerated by a share of, or commission on, the amount of land revenue collected by them but who do not discharge any police functions; and] (g) such other class of persons in the service of the Government as may be prescribed: [Provided that where any person, in the service of the Government and belonging to any of the classes aforesaid, in the discharge or purported discharge of his official duty, makes any arrangements or provides any facilities or does any other act or thing, for, to, or in relation to, any candidate or his agent or any other person acting with the consent of the candidate or his election agent, (whether by reason of the office held by the candidate or for any other reason), such arrangements, facilities or act or thing shall not be deemed to be assistance for the furtherance of the prospects of that candidate's election.] [(h) class of persons in the service of a local authority, university, government company or institution or concern or undertaking appointed or deputed by the Election Commission in connection with the conduct of elections.].” Section 100 (1) (b) and (d) iv)- “(b) 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 (d) that the result of the election, in so far as it concerns a returned candidate, has been materially affected— (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.]” 4. It is alleged that “owing to non-compliance with the provisions of the Constitution, Act, Rules and Orders made under the act”, the result of the election insofar as it concerns respondent No.1, has been materially affected in his favour and against the petitioner. 5. It is averred that respondent No.1 was a member of the previous State Legislative Assembly and was Education Minister in the Government run by BJP. His son Dr. Anil Dhiman remained posted as Block Medical Officer at Bhoranj for a period of more than four years till after declaration of the Assembly elections “contrary to the provisions of the Constitution, Act, Rules and Orders made thereunder” which “materially affected the results in favour of respondent No.1 and against the petitioner”. The State Government transferred all the officers out of their home districts during elections, but no cognizance was taken with respect to Dr. Anil Dhiman, “ who was holding an important position of Block Medical Officer in Bhoranj constituency”. Under a Block Medical Officer there are 5 Primary Health Centres, 1 Community Health Centre and 33 Sub Centres. Thus, in all there are 10 Doctors and 53 para-medical staff working under a Block Medical Officer. The entire district administration was in the know of the fact that Dr. Anil Dhiman is son of sitting MLA from Bhoranj (36) Constituency, who was Education Minister in the previous Bhartiya Janta Party run Government and was BJP candidate in the current election from that Constituency. No steps were taken to transfer Dr. Anil Dhiman. 6. It is stated that Dr. Anil Dhiman was himself aspirant for BJP ticket from this very Constituency in this election. Based on this averment the petitioner prays that “Judicial notice of the fact can be taken from this statement that for the last four years while serving as Block Medical Officer, Dr. Anil Dhiman was having relations with the public at large and, more particularly, said relations with an eye on the forthcoming Assembly elections and accordingly only said relations were now exploited in favour of his father which, in fact, materially affected the declaration of results, in which respondent No.1 was declared elected.” 7. It is further averred that the district administration was well aware that Dr. Anil Dhiman is on earned leave since the imposition of the Model Code of Conduct. During this period Dr. It is further averred that the district administration was well aware that Dr. Anil Dhiman is on earned leave since the imposition of the Model Code of Conduct. During this period Dr. Anil Dhiman had been in the Constituency only and had been campaigning for his father. “Newspapers cuttings are proof of the same qua opening of office by respondent No.1 for the purpose of campaign, where Dr. Anil Dhiman is present. Further details of his mobile number are much more a proof which establish the fact that Dr. Anil Dhiman was present at different parts of the Bhoranj (36) Constituency and even had been campaigning on phone also during his earned leave period.” 8. According to the petitioner, “being incharge of the Bhoranj Block as Block Medical Officer, Dr. Anil Dhiman was having direct access to all the patients of the Block and, more particularly, through medical staff consisting of ten Doctors and 53 para-medical staff”. The petitioner further submits that “in a rural area, where people have got access only to the doctors for their medical problems, have much more say in their day to day life with respect to dictates of medical staff, more particularly, doctors” and “ in this view of the matter, Dr. Anil Dhiman could very well misuse his position to influence the people consisting of about 50000 voters. This, he could have done more because Bhartiya Janta Party candidate was none else than his father. Dr. Anil Dhiman was directly interested party and when he was on earned leave, in fact, had been moving all around to all the Health Centres of the Bhoranj Block to influence the patients and their families.” 9. The petitioner further beseeches “that let District Election Officer i.e. proforma respondent No.7 specifically advert to the issue with respect to the fact that medical facilities to approximately 50000 voters of the Bhoranj (36) Constituency whether is available through the subordinates of a Block Medical Officer or not. The petitioner further beseeches “that let District Election Officer i.e. proforma respondent No.7 specifically advert to the issue with respect to the fact that medical facilities to approximately 50000 voters of the Bhoranj (36) Constituency whether is available through the subordinates of a Block Medical Officer or not. It is submitted that families consisting of ten doctors and 53 para-medical staff working directly under the control of a Block Medical Officer for a period of more than four years and above all this when father of said Block Medical Officer was Education Minister in the previous bhartiya Janta Party run Government, one irresistible conclusion, which could be drawn, is that above said all staff along with their families are, in fact, obliged to the Minister, in turn, Block Medical Officer. Not only this, when said persons are obliged having been kept there under the dictates of a Minister, are, in fact, bound to misuse their position to influence approximately 50000 voters directly in contact with them for their medical facilities.” 10. The petitioner further submits that “in view of this aspect only, orders were issued under the provisions of the Constitution, Act and Rules made for the purpose, thereby framing a transfer policy not to keep such officers in District during the enforcement of Model Code of Conduct. Said orders having not been implemented qua Dr. Anil Dhiman and, in turn, the declaration of results is materially affected, more particularly, with respect to casting of votes.” 11. It is further pleaded as under vide paras 8 to 10 of the petition:- “8. That an RTI activist, Sh. Dev Ashish Bhatacharya, brought this aspect to the notice of proforma respondents, vide his various communications dated 27th/29th October, 2012, 29th/30th October, 2012, 31st October, 2012 and 2nd November, 2012. It appears that thereafter even proforma respondents concluded in their wisdom that posting of Dr. Anil Dhiman in Bhoranj (36) Constituency and furthermore his acts during the period when he was on earned leave, in fact, have prejudiced the casting of the votes in the above said Constituency, passed orders thereby transferring Dr. Anil Dhiman and further issuing directions that he be physically (emphasis laid) sent out of the District and be not allowed to come back during the period of campaigning till the election is over. This proforma respondents ordered, vide communication dated 1.11.2012. Anil Dhiman and further issuing directions that he be physically (emphasis laid) sent out of the District and be not allowed to come back during the period of campaigning till the election is over. This proforma respondents ordered, vide communication dated 1.11.2012. It is gainfully submitted here that election campaign came to be stopped from 2.11.2012 and uptil said period Dr. Anil Dhiman was not physically ousted from the Constituency, may be there are orders dated 1.1.2012. From the narration of above facts, two things are clear; (a) that proforma respondents considered and opined that posting of Dr. Anil Dhiman in Bhoranj (36) Constituency during the course of election is in violation of the provisions of the Act, Rules and Orders made thereunder and, thus, only ordered his transfer and sending him physically out of the District, (b) but by that time results of the elections stand materially affected as campaigning came to an end as per dictates of the proforma respondents on 2.11.2012 at 5.00 p.m. 9. That in the case in hand, margin of victory is of 10415 votes and voters approximately influenced owing to posting of Dr. Anil Dhiman, Block Medical Officer, Bhoranj is 50000. In this view of the matter, the declaration of results is materially affected, thus, the present petition. 10. That RTI activist specifically brought to the notice of proforma respondents that irreparable damage has already been done to the free and fair elections in the Bhoranj Constituency, thus, as per him, election should be countermanded. It appears that no decision was taken by proforma respondents upon the said representations of the RTI activist, which again depicts that proforma respondents have failed to obey the commands of the Constitution, Act, Rules and Orders passed thereunder, thereby making the declaration of results of Bhoranj (36) Constituency to be void.” 12. On the above averments the petitioner has put the following posers vide para 11(a) to (g):- “(a) Whether because of the fact that Dr. Anil Dhiman was not transferred out of Bhoranj Constituency before the imposition of the Model Code of Conduct, more particularly, when officers concerned were aware of the fact that Dr. Anil Dhiman working as Block Medical Officer is the son of Bhartiya Janta Party candidate, Sh. Ishwar Dass Dhiman, who, in the previous Government was Education Minister and Dr. Anil Dhiman was not transferred out of Bhoranj Constituency before the imposition of the Model Code of Conduct, more particularly, when officers concerned were aware of the fact that Dr. Anil Dhiman working as Block Medical Officer is the son of Bhartiya Janta Party candidate, Sh. Ishwar Dass Dhiman, who, in the previous Government was Education Minister and Dr. Anil Dhiman being Block Medical Officer, Bhoranj, is able to influence approximately 50000 voters of the Constituency? (b) Whether owing to taking of no action with respect to transfer of Dr. Anil Dhiman and shifting him out of Constituency despite matter having been brought to the notice of proforma respondents by RTI activist, further aggravated the position in materially affecting the result of the Bhoranj (36) Constituency? (c) Whether because of non-transfer of Dr. Anil Dhiman uptil 2.11.2012, the date on which campaigning came to an end, affected free and fair elections, thereby resulting in making the elections of Bhoranj (36) Constituency to be void? (d) Whether by issuing orders dated 1.11.2012 thereby transferring Dr. Anil Dhiman and ordering to shift him forcefully out of the Constituency resulted into agreeing with the position now being envisaged by the petitioner and as per petitioner now no further proof is required for the purpose? (e) Whether during the period of earned leave, Dr. Anil Dhiman, in fact, exploited his relations having been developed by him for a period of more than four years, by influencing more than 50000 voters of the Constituency, who were to avail medical facilities from the Health Centres, which fall directly under the supervision of Block Medical Officer, Bhoranj, Dr. Anil Dhiman? (f) Whether fact publically known that Dr. Anil Dhiman is staying as Block Medical Officer, Bhoranj for the last four years and said time is sufficient to develop relations with the people of Bhoranj Constituency, from where his father and Bhartiya Janta Party candidate, Shri Ishwar Dass Dhiman is Member of legislative Assembly for 25 years and Minister for ten years, in fact, influenced the voters, thereby resulting into the fact that elections of the said Constituency are not free and fair and, in fact, his presence materially affected the declaration of the results? (g) Whether violation of orders issued under the provisions of the Constitution, particularly Article 324, read with proviso to Section 15(2) of the Representation of People act, 1951 and provisions of section 13 (CC) of the Representation of People act, 1950 and Section 28A of the Representation of People act, 1951, by proforma respondents with respect to serving of the officers/officials in home districts, vide communication dated 12.9.2012, having been violated and resultantly elections of the Bhoranj (36) Constituency being not free and fair and, in fact, stand influenced by the relations developed by Dr. Anil Dhiman, being Block Medical Officer, Bhoranj, for the last four years and, more particularly being son of sitting member of Legislative Assembly and Education Minister, in turn, damage to the rival candidates and planks of victory having been got tilted towards his father by unfair means, deprived the sanctity of the free and fair elections?” 13. It is lastly pleaded as under vide paras 12 and 13:- “12. That as stated supra, Dr. Anil Dhiman actively participated in political activities and this fact is known to the public at large and even at one stage his name was considered for the ticket of Bhartiya Janta Party in place of his father. These facts are being stated by petitioner on the basis of inputs as are obtained from the press clippings of the local newspapers. Even after passing of orders dated 1.1.2012 with respect to transfer of Dr. Anil Dhiman, let respondents explain that who took over at his place. Answer is ‘None’, meaning thereby Dr. Anil Dhiman continued at the said place even after 2.11.2012. 13. That keeping inview the margin of victory of 10415 votes, it is submitted that just above 5000 votes ought to have made difference and approximately 50000 votes of Bhoranj Constituency were in a position of being influenced directly by Block Medical Officer, in law, it is crystal-clear and can be held without any fear of contradiction that results of Bhoranj (36) Constituency in favour of respondent No.1 are materially affected and are not free and fair, thus, are liable to be declared void, in turn, next candidate i.e. runner-up, petitioner, is liable to be declared elected.” 14. On the above averments the following prayers have been made:- “It is, therefore, respectfully prayed that present petition may very kindly be accepted and declaration of result in favour of respondent No.1 herein as winning candidate made by proforma respondents herein may very kindly be quashed and set aside with further directions to the said respondents to declare petitioner as having been duly elected from Bhoranj (36) Constituency for State Assembly in the elections held on 4.11.2012. In the alternative, elections of Bhoranj (36) Constituency may very kindly be ordered to be countermanded with directions to the proforma respondents herein to hold fresh election in accordance with the provisions of the Constitution, Act and Rules, to secure the ends of law and justice.” 15. The petition is contested by respondent No.1 on preliminary submissions regarding copy of the petition supplied to him not being a true copy of the “original Election Petition” inasmuch as that typed version of pages 29 to 32 of the “original petition” has not been supplied and “it is not signed originally by the Learned Counsel at all the relevant places”, as required under Section 81(3) of the 1951 Act and as such liable to be dismissed under Section 86 of the said Act; the petition having not been properly verified and the affidavit also being vague; the allegations in the petition being “vague and uncertain” and not disclosing a concise statement of material facts as required under law and as such cannot be tried; there being “not even a whisper in the entire petition that Dr. Anil Dhiman worked with the ‘consent” of the replying respondent or his Election Agent. Consent cannot be presumed but it has to be alleged and proved beyond reasonable doubt like a criminal trial. The grounds which are not alleged cannot be proved. Hence, the election petition deserves to be dismissed with costs as there is no allegation of consent in the petition”; there being no violation of any statutory provision and as such no triable issue in the election petition the same being without any cause of action deserves to be dismissed with costs and mis-joinder of necessary parties on the ground that respondents No. 5 to 7 have been wrongly arrayed as such in violation of Section 83 of the 1951 Act . On merits, the averments regarding holding of election and outcome thereof have been admitted. On merits, the averments regarding holding of election and outcome thereof have been admitted. It is denied that there is violation of any legal provision. It is admitted that earlier the replying respondent was an MLA belonging to BJP and had been Education Minister in the Government of Himachal Pradesh. However, it is denied that Dr. Anil Dhiman remained posed as Block Medical Officer at Bhoranj for more than four and half years or any statutory provision has been violated or “he materially affected the results in favour of Respondent No.1”. It is further pleaded that there is no provision under the law to transfer all the officers out of their home districts during election. Rest of the contents of para 4 of the petition regarding Dr. Anil Dhiman are stated to be “irrelevant for the purpose of election petition”, vague and lacking material particulars, hence liable to be deleted. The alleged newspaper cuttings and mobile phone call details have not been enclosed with the petition and as such can neither be looked into nor proved in evidence. According to the replying respondent “In fact, such vague, uncertain and irrelevant allegations are called as fishing inquiry and the same is strictly prohibited in the election law”. Further averments in para 6 of the petition regarding the role of Dr. Anil Dhiman are denied being wrong and lacking in “material particulars, material fact, vague and are presumtary in nature, as such, deserves to be deleted from the petition”. 16. It is further pleaded that the petition does not even mention the names of subordinates, who allegedly were “in fact, obliged to the Minister, in turn, Block Medical Officer”. It is stated that the answering respondent had nothing to do with the averments made in para 8 of the petition regarding role of Shri Dev Ashish Bhatacharya an RTI activist, which even otherwise are irrelevant for the purpose of the election petition. According to the replying respondents “In Himachal Pradesh Assembly elections, victory by 10415 votes amounts to a big victory and it is not a margin victory”. 17. Further averments in para 11 of the reply are to the following effect: “That Para No. 11 alongwith sub-para (1) to (g) of the Election Petition is wrong and emphatically denied. According to the replying respondents “In Himachal Pradesh Assembly elections, victory by 10415 votes amounts to a big victory and it is not a margin victory”. 17. Further averments in para 11 of the reply are to the following effect: “That Para No. 11 alongwith sub-para (1) to (g) of the Election Petition is wrong and emphatically denied. The documents which are not placed on the record alongwith the election petition and are not duly verified cannot be allowed to be proved and taken on record to fill up the lacuna. The letter dated 12.09.2012 by the Election Commission of India to the Chief Secretary and the Chief Electoral Officer of Himachal Pradesh is advisory in nature. The category of Dr. Anil Dhiman does not fall within the purview of this letter. Even the violation of the same, if any, has no penal consequences. This para 11 alongwith sub-paras (a) to (g) is completely on imaginary and a fishing inquiry which is not permissible under the election law. The allegations leveled in this para and in the petition do not fall within the purview of corrupt practice under Section 123 of the Act or a ground for declaring election void under Section 100 of the Act as there is no allegation of consent of the replying respondent or his election agent. None of the law points as visualized by the petitioner, arises for any consideration by this Hon’ble Court.” 18. It is lastly stated that the election in question “had been very fair and free and there is no ground for interfering with the same. The election petition deserves to be dismissed with heavy costs”. 19. Respondents No. 2 to 4 were proceeded against ex parte vide order dated 3.4.2013. 20. Proforma respondents No. 5 to 7, Chief Election Commissioner, Chief Electoral Officer, Himachal Pradesh and District Election Officer (Deputy Commissioner), Hamirpur, H.P., were ordered to be deleted as parties to the present petition vide order dated 13.8.2013 in EMP No. 11001 of 2013. 21. In the replication apart from pleading that “Dr. 20. Proforma respondents No. 5 to 7, Chief Election Commissioner, Chief Electoral Officer, Himachal Pradesh and District Election Officer (Deputy Commissioner), Hamirpur, H.P., were ordered to be deleted as parties to the present petition vide order dated 13.8.2013 in EMP No. 11001 of 2013. 21. In the replication apart from pleading that “Dr. Anil Dhiman having remained posted for more than four years and even after declaration of the results, having campaigned in favour of his father with his consent, being present on the dais alongwith his father at various intervals, materially affected the results in favour of respondent No.1 and against the petitioner”, the petitioner has refuted the stand on behalf of respondent No. 1 and instead reiterated his own case (emphasis supplied). 22. On the pleadings on behalf of the contesting parties, the following issues have been settled, out of which, issues No. 3 to 7 have been ordered to be treated as preliminary issues, as already noticed:- “1) Whether the election of respondent No. 1 is liable to be set aside because of his having committed a corrupt practice viz obtaining assistance of his son, Dr. Anil Dhiman “who was holding an important position of Block Medical Officer in Bhoranj constituency”, to further his prospects in the election in violation of Section 123(7) of the Representation of the People Act, 1951? …..OPP. 2) Whether the petitioner is entitled to be declared elected in place of respondent No. 1, as prayed for? …OPP. 3) Whether the copy of the petition supplied to respondent No. 1 is not a true copy of the original petition and if so, its effect? ……OPR-1. 4) Whether the petition has not been properly verified and supported by a proper affidavit in accordance with law and if so, its effect? ……OPR-1. 5) Whether the election petition is liable to be dismissed for lack of material facts and particulars? ……OPR-1. 6) Whether the petitioner has no cause of action and the petition is liable to be dismissed on this count? ..….OPR-1. 7) Whether the election petition suffers from misjoinder of parties and if so, its effect? ……OPR-1. 8) Relief.” 23. I have heard the learned Counsel/Senior Counsel for the contesting parties and gone through the records. 24. The parties have relied upon the following case law:- RESPONDENT No.1 1. Parkash Chand v. State of Punjab and others, 1977 Punjab Law Reporter 84; 2. ……OPR-1. 8) Relief.” 23. I have heard the learned Counsel/Senior Counsel for the contesting parties and gone through the records. 24. The parties have relied upon the following case law:- RESPONDENT No.1 1. Parkash Chand v. State of Punjab and others, 1977 Punjab Law Reporter 84; 2. Jyoti Basu and others vs. Debi Ghosal and others, 1982 (1) SCC 691 ; 3. Azhar Hussain v. Rajiv Gandhi, AIR 1986 Supreme Court 1253; 4. Dhartipakar Madan Lal Agarwal v. Shri Rajiv Gandhi, AIR 1987 Supreme Court 1577; 5. Narain Chand Prashar v. Prem Kumar Dhumal and others, AIR 1993 Himachal Pradesh 84; 6. Dr. Shipra (Smt.) and others vs. Shanti Lal Khoiwal and others, 1996 (5) SCC 181 ; 7. Smt. Vimla Devi v. State of Himachal Pradesh and others, AIR 1999 Himachal Pradesh 38; 8. Hari Shanker Jain vs. Sonia Gandhi, (2001) 8 Supreme Court Cases 233; 9. Mahendra Pal v. Shri Ram Dass Malanger & Ors., JT 2002 (2) SC 396; 10. Mahender Pratap vs Krishan Pal and others JT 2002 (10) SC 30; 11. G. V. Sreerama Reddy and another vs. Returning Officer and others, 2009 (8) SCC 736 ; 12. Anil Vasudev Salgaonkar vs. Naresh Kushali Shigaonkar, (2009) 9 Supreme Court Cases 310. PETITIONER 1. V. Narayanaswamy vs. C. P. Thirunavukkarasu, AIR 2000 SC 694 ; 2. K.K. Ramchandran Master vs. M.V. Sreyamakumar and others, (2010) 7 Supreme Court Cases 428; 3. Nandiesha Reddy vs. Kavitha Mahesh, (2011) 7 Supreme Court Cases 721; 4. Ponnala Lakshmaiah vs. Kommuri Pratap Reddy and others (2012) 7 Supreme Court Cases 788; BOTH BY RESPONDENT No.1 AND PETITIONER 1. V. Narayanaswamy vs. C. P. Thirunavukkarasu, AIR 2000 SC 694 ; 2. K. K. Ramchandran Master vs. M.V. Sreyamakumar and others, (2010) 7 Supreme Court Cases 428. 25. The principles of law enunciated in the above authorities have been taken into consideration and borne in mind and shall be referred to wherever necessary. 26. For the sake of convenience preliminary issues No. 5 and 6, being interconnected requiring common appreciation of pleadings and law, are taken up together for discussion and decision first. 27. 25. The principles of law enunciated in the above authorities have been taken into consideration and borne in mind and shall be referred to wherever necessary. 26. For the sake of convenience preliminary issues No. 5 and 6, being interconnected requiring common appreciation of pleadings and law, are taken up together for discussion and decision first. 27. The law relating to ‘material facts’ and ‘full particulars of any corrupt practice’ has been succinctly crystallized by the Hon’ble Apex Court in Virender Nath Gautam vs. Satpal Singh and others, (2007) 3 Supreme Court Cases 617, a case arising out of the final judgment and order dated 20.12.2004 of this court in Election Petition No. 2 of 2003, laying down as under vide paras 25 to 36 and 50:- “25. Before we deal with the contentions of the parties, it would be appropriate if we refer to the relevant provisions of the Act. The Preamble of the Act declares that the Act has been enacted "to provide for the conduct of elections of the Houses of Parliament and to the House or Houses of the Legislature of each State, the qualifications and disqualifications for membership of those Houses, the corrupt practices and other offences at or in connection with such elections and the decision of doubts and disputes arising out of or in connection with such elections". 26. Part I is Preliminary. Part II deals with qualifications and disqualifications for membership of Parliament and of State Legislatures. While Part III provides for issuance of notifications for elections, Part IV relates to administrative machinery for the conduct of elections. Sections 59 and 60 lay down manner and procedure of voting. Section 61 prescribes special procedure for preventing personation of electors. Section 62 relates to right to vote. It is a material provision and may be quoted in extenso; “62. Right to vote.-(1) No person who is not, and except as expressly provided by this Act, every person who is, for the time being entered in the electoral roll of any constituency shall be entitled to vote in that constituency. (2) No person shall vote at an election in any constituency if he is subject to any of the disqualifications referred to in section 16 of the Representation of the People Act, 1950 (43 of 1950). (2) No person shall vote at an election in any constituency if he is subject to any of the disqualifications referred to in section 16 of the Representation of the People Act, 1950 (43 of 1950). (3) No person shall vote at a general election in more than one constituency of the same class, and if a person votes in more than one such constituency, his votes in all such constituencies shall be void. (4) No person shall at any election vote in the same constituency more than once, notwithstanding that his name may have been registered in the electoral roll for the constituency more than once, and if he does so vote, all his votes in that constituency shall be void. (5) No person shall vote at any election if he is confined in a prison, whether under a sentence of imprisonment or transportation or otherwise, or is in the lawful custody of the police; Provided that nothing in this sub-section shall apply to a person subjected to preventive detention under any law for the time being in force. (6) Nothing contained in sub-sections (3) and (4) shall apply to a person who has been authorized to vote as proxy for an elector under this Act in so far as he votes as a proxy for such elector.” 27. Conduct of elections has been dealt with in Part V. Part VI relates to 'Disputes regarding elections'. Section 80 requires any election to be questioned only by way of Election Petition. Under Section 80A, it is the High Court which can try election petitions. Section 81 provides for presentation of election petition and prescribes the period of limitation. Section 82 declares as to who shall be joined as respondents to such Election Petition. Section 83 deals with contents of petition and reads thus- “83. Under Section 80A, it is the High Court which can try election petitions. Section 81 provides for presentation of election petition and prescribes the period of limitation. Section 82 declares as to who shall be joined as respondents to such Election Petition. Section 83 deals with contents of petition and reads thus- “83. Contents of petition-(1) An Election petition- (a) shall contain a concise statement of the material facts on which the petitioner relies; (b) shall set forth full particulars of any corrupt practice that the petitioner alleges including as full a statement as possible of the names of the parties alleged to have committed such corrupt practice and the date and place of the commission of each such practice; and (c) shall be signed by the petitioner and verified in the manner laid down in the Code of Civil Procedure, 1908 (5 of 1908) for the verification of pleadings: Provided that where the petitioner alleges any corrupt practice, the petition shall also be accompanied by an affidavit in the prescribed form in support of the allegation of such corrupt practice and the particulars thereof. (2) Any schedule or annexure to the petition shall also be signed by the petitioner and verified in the same manner as the petition.” 28. Section 100 enumerates grounds for declaring election to be void which inter alia includes improper reception, refusal or ejection of any vote or the reception of any vote which is void or there is non-compliance with the provisions of the Constitution or of the Act or Rules or orders made under the Act. Section 101 empowers the High Court to declare a candidate other than the returned candidate to have been elected. Section 123 declares certain practices as "deemed to be corrupt practices". 29. From the relevant provisions of the Act reproduced hereinabove, it is clear that an election petition must contain a concise statement of 'material facts' on which the petitioner relies. It should also contain 'full particulars' of any corrupt practice that the petitioner alleges including a full statement of names of the parties alleged to have committed such corrupt practice and the date and place of commission of such practice. Such election petition shall be signed by the petitioner and verified in the manner laid down in the Code of Civil Procedure, 1908 (hereinafter referred to as "the Code") for the verification of pleadings. Such election petition shall be signed by the petitioner and verified in the manner laid down in the Code of Civil Procedure, 1908 (hereinafter referred to as "the Code") for the verification of pleadings. It should be accompanied by an affidavit in the prescribed form in support of allegation of such practice and particulars thereof. 30. All material facts, therefore, in accordance with the provisions of the Act, have to be set out in the election petition. If the material facts are not stated in a petition, it is liable to be dismissed on that ground as the case would be covered by clause (a) of sub-section (1) of Section 83 of the Act read with clause (a) of Rule 11 of Order 7 of the Code. 31. 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. 32. In the leading case of Phillips v. Phillips, (1878) 4 QBD 127 : 48 LJ QB 135, Cotton, L.J. 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." 33. 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." 33. In Bruce v. Odhams Press Ltd., (1936) 1 KB 697 : (1936) 1 All ER 287, Scott, L.J. referring to Phillips v. Phillips observed: (ALL ER p. 294) "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." 34. 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. 35. All 'material facts' must be pleaded by the party in support of the case set up by him. Since the object and purpose is to enable the opposite party to know the case he has to meet with, in the absence of pleading, a party cannot be allowed to lead evidence. Failure to state even a single material fact, hence, will entail dismissal of the suit or petition. Particulars, on the other hand, are the details of the case which is in the nature of evidence a party would be leading at the time of trial. 36. In Halsbury's Laws of England, (4th edn.); Vol.36; para 38, it has been stated; "38. 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. 36. In Halsbury's Laws of England, (4th edn.); Vol.36; para 38, it has been stated; "38. The function of particulars is to carry into operation the overriding principle that the litigation between the parties, and particularly the trial, should be conducted fairly, openly and without surprises, and incidentally to reduce costs. This function has been variously stated, namely either to limit the generality of the allegations in the pleadings, or to define the issues which have to be tried and for which discovery is required. Each party is entitled to know the case that is intended to be made against him at the trial, and to have such particulars of his opponent's case as will prevent him from being taken by surprise. Particulars enable the other party to decide what evidence he ought to be prepared with and to prepare for the trial. A party is bound by the facts included in the particulars, and he may not rely on any other facts at the trial without obtaining the leave of the court." 50. 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 proved, 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. 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.” 28. 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.” 28. The above interpretation of ‘material facts’ and ‘full particulars of any corrupt practice’ referred to in clauses (a) and (b) of sub section (1) of Section 83 of 1951 Act, has also been reiterated in later judgments rendered by the Hon’ble Supreme Court in (1) Anil Vasudev Salgaonkar vs. Naresh Kushali Shigaonkar, (2009) 9 Supreme Court Cases 310, (2) K.K. Ramchandran Master vs. M.V. Sreyamakumar and others, (2010) 7 Supreme Court Cases 428, (3) Nandiesha Reddy vs. Kavitha Mahesh, (2011) 7 Supreme Court Cases 721 and (4) Ponnala Lakshmaiah vs. Kommuri Pratap Reddy and others, (2012) 7 Supreme Court Cases 788. 29. It shall be pertinent to notice at the very outset that in the first sub para of para 4 of the petition the petitioner has specifically pleaded as under:- “Petitioner humbly begs to submit that entire District Administration was in know of the fact that Dr. Anil Dhiman is son of sitting Member of Legislative Assembly from Bhoranj (36) Constituency and who was the Education Minister in the previous Bhartiya Janta Party run Government and further was the Bhartiya Janta Party candidate from Bhoranj (36) Constituency. No steps were taken to transfer said incumbent”. 30. Para 4 of the petition has been replied by respondent No.1 as under:- “That Para 4 of the petition is wrong and emphatically denied. There is no provision under the law to transfer all the officers out of their home district during election. Rest of the contents in this para are irrelevant for the purpose of election. This para of the petition is vague and lacks material particulars, hence deserves to be deleted.” 31. It is manifest from the perusal of the above reply that respondent No.1 has not specifically denied his relationship with Dr. Anil Dhiman as his son. It being so, the averments to this effect would be deemed to have been impliedly admitted. 32. Gravamen against Dr. It is manifest from the perusal of the above reply that respondent No.1 has not specifically denied his relationship with Dr. Anil Dhiman as his son. It being so, the averments to this effect would be deemed to have been impliedly admitted. 32. Gravamen against Dr. Anil Dhiman, who according to the petitioner “was holding an important position of Block Medical Officer in Bhoranj Constituency” and was as such exercising considerable influence in the area on his own and as son of the sitting Minister, is that he himself was an aspirant for the BJP ticket from this very Constituency, remained posted as Block Medical Officer, Bhoranj Block, for the last more than four years uptil the fag end of the election and was not posted out of the Constituency in violation of the instructions issued by the Election Commission, due to which the result of the election, insofar as it concerns respondent No.1, has been materially affected. 33. As already noticed, challenge to the election of respondent No.1 is based solely on the corrupt practice referred to under sub section (7) to Section 123 read with Section 100 (1) (b) and (d) (iv) of the 1951 Act. Both these provisions also stand already noticed in para 3 of this judgment. 34. What is prohibited under sub section (7) of Section 123 of the 1951 Act is - obtaining or procuring or abetting or attempting to obtain or procure by a candidate or his agent or, by any other person with the consent of a candidate or his election agent, ‘any assistance’ (other than the giving of vote) for the furtherance of the prospects of that candidate’s election, from any person whether or not in the service of the Government and belonging to any of the classes enumerated therein from (a) to (h) (emphasis supplied). 35. However, from the perusal of the averments set up in the petition it is not discernible as to under which of the aforesaid classes Dr. Anil Dhiman allegedly falls. In any case, he is not covered under any of the categories (b) to (f) and (h). For want of any supporting material he is also not covered under category (g). As far as category (a) is concerned, the petition lacks in the pleadings worth the name to show that Dr. Anil Dhiman allegedly falls. In any case, he is not covered under any of the categories (b) to (f) and (h). For want of any supporting material he is also not covered under category (g). As far as category (a) is concerned, the petition lacks in the pleadings worth the name to show that Dr. Anil Dhiman, who was stated to be “holding an important position of Block Medical Officer in Bhoranj Constituency”, was a ‘gazetted officer’. 36. A bare reading of the averments set up in the petition would go to show that the petitioner has nowhere pleaded that either respondent No.1 or his agent or any other person with his or his election agent’s consent was instrumental in obtaining or procuring or abetting or attempting to obtain or procure ‘any assistance’ from the petitioner, who is not even alleged to be a ‘gazetted officer’. It being so, the following averments set up in the replication to paras 1 to 3 of the reply filed on behalf of respondent No.1 alleging implied consent on the part of respondent No.1 cannot be looked into, as having been incorporated in the replication after an objection in that regard was raised by respondent No.1 in the written statement vide para 4 of the preliminary submissions, being a mere afterthought:- “That the contents of paras 1 to 3 of the Written Statement on Merits so far pertain to records and are admitted, are not denied, the remaining contents are wrong, false, baseless and hence emphatically denied and repudiated. Apathy of the matter is that respondent No.1 has even denied that Dr. Anil Dhiman is his son having not been admitted specifically. Dr. Anil Dhiman having remained posted for more than four years and even after declaration of the results, having campaigned in favour of his father with his consent, being present on the dais alongwith his father at various intervals, materially affected the results in favour of respondent No.1 and against the petitioner”. 37. Above all, these averments were incorporated in the replication filed on 2.8.2013, much after expiry of the period of limitation for filing the election petition as provided under Section 81 of the 1951 Act. 38. 37. Above all, these averments were incorporated in the replication filed on 2.8.2013, much after expiry of the period of limitation for filing the election petition as provided under Section 81 of the 1951 Act. 38. In order to arrive at the above inference support is drawn from Hari Shanker Jain vs. Sonia Gandhi, (2001) 8 Supreme Court Cases 233, wherein it has been laid down as under vide paras 23 and 24:- “23. Section 83(1)(a) of RPA, 1951 mandates that an election petition shall contain a concise statement of the material facts on which the petitioner relies. By a series of decisions of this Court, it is well-settled that the material facts required to be stated are those facts which can be considered as materials supporting the allegations made. In other words, they must be such facts as would afford a basis for the allegations made in the petition and would constitute the cause of action as understood in the Code of Civil Procedure, 1908. The expression 'cause of action' has been compendiously defined to mean every fact which it would be necessary for the plaintiff to prove, if traversed, in order to support his right to the judgment of the Court. Omission of a single material fact leads to an incomplete cause of action and the statement of claim becomes bad. The function of the party is to present as full a picture of the cause of action with such further information in detail as to make the opposite party understand the case he will have to meet. See Samant N. Balakrishna, etc. v. George Fernandez, (1969) 3 SCR 603 ; Jitender Bahadur Singh v. Krishna Behari, (1969) 2 SCC 433 . Merely quoting the words of the Section like chanting of a mantra does not amount to stating material facts. Material facts would include positive statement of facts as also positive averment of a negative fact, if necessary. In V. S. Achuthanandan v. P. J. Francis, (1999) 3 SCC 737 , this Court has held, on a conspectus of a series of decisions of this Court, that material facts are such preliminary facts which must be proved at the trial by a party to establish existence of a cause of action. In V. S. Achuthanandan v. P. J. Francis, (1999) 3 SCC 737 , this Court has held, on a conspectus of a series of decisions of this Court, that material facts are such preliminary facts which must be proved at the trial by a party to establish existence of a cause of action. Failure to plead "material facts" is fatal to the election petition and no amendment of the pleadings is permissible to introduce such material facts after the time-limit prescribed for filing the election petition. 24. It is the duty of the Court to examine the petition irrespective of any written statement or denial and reject the petition if it does not disclose a cause of action. To enable a Court to reject a plaint on the ground that it does not disclose a cause of action, it should look at the plaint and nothing else. Courts have always frowned upon vague pleadings which leave a wide scope to adduce any evidence. No amount of evidence can cure basic defect in the pleadings” (emphasis supplied). 39. The same principle of law has also been enunciated in Anil Vasudev Salgaonkar vs. Naresh Kushali Shigaonkar, (2009) 9 Supreme Court Cases 310, v ide paras 59 to 61, which are extracted below:- “59. In the context of a charge of corrupt practice, "material facts" would mean all basic facts constituting the ingredients of the particular corrupt practice alleged, which the petitioner (respondent herein) is bound to substantiate before he can succeed on that charge. It is also well-settled that if "material facts" are missing they cannot be supplied after expiry of period of limitation for filing the election petition and the pleading becomes deficient. 60. According to the appellant, in the election petition, there was no averment whether the bore wells were dug with the consent and/or active knowledge of the appellant. This averment was absolutely imperative and the failure to mention such an important averment in the petition is fatal for the election-petitioner (respondent herein) and the election petition is liable to be summarily dismissed on that ground (emphasis supplied). 61. This averment was absolutely imperative and the failure to mention such an important averment in the petition is fatal for the election-petitioner (respondent herein) and the election petition is liable to be summarily dismissed on that ground (emphasis supplied). 61. The legal position has been crystallized by a series of he judgments of this Court that all those facts which are essential to clothe the election petitioner with a complete cause of action are "material facts" which must be pleaded, and the failure to place even a single material fact amounts to disobedience of the mandate of section 83(1)(a) of the Act.” 40. Please also see (1) Daulat Ram Chauhan v. Anand Sharma, AIR 1984 Supreme Court 621 (para 18), (2) Harkirat Singh vs. Amrinder Singh, JT 2005(10) SC 513 (para 30) and (3) Azhar Hussain v. Rajiv Gandhi, AIR 1986 Supreme Court 1253 (para 14). 41. Though the petitioner has alleged that Dr. Anil Dhiman being Block Medical Officer was exercising control over 10 Doctors and 53 para medical staff working under him in 5 primary health centres, 1 community health centre and 53 three sub centres, besides patients and their family members visiting those health centres, yet not even a single Doctor or para medical staff or any patient or family member of any patient has been named in the petition, over whom Dr. Anil Dhiman had exercised any influence, whereby result of the election, insofar as it concerns respondent No.1, has been materially affected. 42. The averment in para 7 of the plaint that “above all this when father of said Block Medical Officer was Education Minister in the previous bhartiya Janta Party run Government, one irresistible conclusion, which could be drawn, is that above said all staff along with their families are, in fact, obliged to the Minister, in turn, Block Medical Officer”, on the face of it is based on a mere hypothetical premise (emphasis supplied). 43. Furthermore, though the petitioner has alleged that as per news-items Dr. Anil Dhiman was himself an aspirant for BJP ticket, which ultimately was allotted to his father, who contested the election, yet no such news-item has been brought on record in support of the allegation that Dr. Anil Dhiman was present at the time of “opening of office by respondent No.1 for the purpose of campaign”. Anil Dhiman was himself an aspirant for BJP ticket, which ultimately was allotted to his father, who contested the election, yet no such news-item has been brought on record in support of the allegation that Dr. Anil Dhiman was present at the time of “opening of office by respondent No.1 for the purpose of campaign”. Even names of the newspapers along with dates, in which such news-items had allegedly appeared have not been stated in the petition. Still further call details of his mobile phone about his movements in the constituency for campaigning while on earned leave have also not been filed. 44. In the entire petition there is no allegation of any overt or covert act of commission or omission against respondent No.1 that he had obtained or procured or abetted or attempted to obtain or procure ‘any assistance’ from his son, Dr. Anil Dhiman, who at the relevant time was posted as Block Medical Officer, Bhoranj Block, who as already observed, is not even alleged or established to be a ‘gazetted officer’. 45. Even otherwise, essential facts such as mode, measure, kind or form, manner, type, date, time, place and persons from whom the actual and specific assistance was allegedly procured have not been stated “to clothe the petition with a cause of action which will call for an answer from the returned candidate and must therefore be pleaded”, as held by the Hon’ble Supreme Court in Azhar Hussain v. Rajiv Gandhi, AIR 1986 Supreme Court 1253, vide para 14 of the report, which runs as under:- “14. Before we deal with these grounds seriatim, we consider it appropriate to restate the settled position of law as it emerges from the numerous decisions of this Court which have been cited before us in regard to the question as to what exactly is the content of the expression 'material facts and particulars, which the election petitioner shall incorporate in his petition by virtue of Section 83(1) of the Act. (1) What are material facts and particulars? Material facts are facts which if established would give the petitioner the relief asked fOrder The test required to be answered is whether the Court could have given a direct verdict in favour of the election petitioner in case the returned candidate had not appeared to oppose the election petition on the basis of the facts pleaded in the petition. Material facts are facts which if established would give the petitioner the relief asked fOrder The test required to be answered is whether the Court could have given a direct verdict in favour of the election petitioner in case the returned candidate had not appeared to oppose the election petition on the basis of the facts pleaded in the petition. [ (1969) 3 SCR 217 : ( AIR 1969 SC 734 ) - Manubhai Nandlal Amarsey v. Popatlal Manilal Joshi]. (2) In regard to the alleged corrupt practice pertaining to the assistance obtained from a Government servant, the following facts are essential to clothe the petition with a cause of action which will call for an answer from the returned candidate and must therefore be pleaded : [ (1972) 2 SCR 742 : ( AIR 1972 SC 515 ) - Hardwari Lal v. Kanwal Singh]. a) mode of assistance; b) measure of assistance; and c) all various forms of facts pertaining to the assistance. (3) In the context of an allegation as regards procuring, obtaining abetting or attempting to obtain or procure the assistance of Government servants in election it is absolutely essential to plead the following : (a) kind or form of assistance obtained or procured; (b) in what manner the assistance was obtained or procured or attempted to be obtained or procured by the election candidate for promoting the prospects of his election. [ AIR 1972 SC 515 ] (4) The returned candidate must be told as to what assistance he was supposed to have sought, the type of assistance, the manner of assistance, the time of assistance, the persons from whom the actual and specific assistance was procured [ AIR 1972 SC 515 ]. (5) There must also be a statement in the election petition describing the manner in which the prospects of the election was furthered and the way in which the assistance was rendered. ( AIR 1972 SC 515 ) (supra) (6) The election petitioner. must state with exactness the time of assistance, the manner of assistance, the persons from whom assistance was obtained or procured, the time and date of the same, all these will have to be set out in. the particulars. ( AIR 1972 SC 515 ) (supra).” 46. The allegation in para 6 of the petition that “Dr. must state with exactness the time of assistance, the manner of assistance, the persons from whom assistance was obtained or procured, the time and date of the same, all these will have to be set out in. the particulars. ( AIR 1972 SC 515 ) (supra).” 46. The allegation in para 6 of the petition that “Dr. Anil Dhiman could (emphasis supplied) very well misuse his position to influence the people consisting of about 50000 voters”, besides being conjectural and hypothetical in nature on the face of it appears to be highly exaggerated taking into consideration the specific averments set up vide para 9 of the petition, as re-produced below:- “That in case in hand, margin of victory is of 10415 votes and voters approximately influenced owing to posting of Dr. Anil Dhiman, Block Medical Officer, Bhoranj is 50000. In this view of the matter, the declaration of results is materially affected, thus, the present petition.” 47. When confronted with the above situation the learned counsel for the petitioner stated at the bar that mention of 50000 voters in these paras of the petition is an inadvertent mistake and in fact it ought to have been 15000 voters. This aspect of the matter also goes to show the lackadaisical manner in which the petition has been drafted. Even if the figure is taken to be 15000, it lacks in material details, as already observed and as such the averments in para 6 of the petition that “in a rural area, where people have got access only to the doctors for their medical problems, have much more say in their day to day life with respect to dictates of medical staff, more particularly, doctors”, are conjectural, hypothetical and general in nature. 48. There is no denying the fact that at no point of time the petitioner had himself objected to the posting of Dr. Anil Dhiman as Block Medical Officer, Bhoranj Block, either prior to announcement of the election or thereafter during the election process and instead it was one Mr. Dev Ashish Bhatacharya, who is said to be an Right to Information (RTI) activist, who had taken up this matter with the Election Commission by way of RTI applications, pursuant to which Dr. Anil Dhiman as Block Medical Officer, Bhoranj Block, either prior to announcement of the election or thereafter during the election process and instead it was one Mr. Dev Ashish Bhatacharya, who is said to be an Right to Information (RTI) activist, who had taken up this matter with the Election Commission by way of RTI applications, pursuant to which Dr. Anil Dhiman was ultimately ordered to be transferred out of the district vide letter dated 1st November, 2012, addressed by the Under Secretary, Election Commission of India, New Delhi to the Chief Electoral Officer, Himachal Pradesh, Shimla, with further direction that he “be physically sent out of the district and not be allowed to come back during the period of campaigning till the poll is over”, in terms of the instructions dated 12th September, 2012, issued by the Election Commission of India, New Delhi to the Chief Secretaries and Chief Electoral Officers of Himachal Pradesh, interalia Gujarat, followed by letter dated 25th/29th September, 2013, sent by the Chief Electoral Officer, Himachal Pradesh to various authorities, such as Chief Secretary to the Government of Himachal Pradesh etc. etc. mentioned therein. 49. However, the fact remains that in the absence of any allegation that either respondent No.1 was instrumental in getting his son Dr. Anil Dhiman posted as Block Medical Officer, Bhoranj Block or ensuring that he remained posted there even after declaration of the election and imposition of the code of conduct till ultimately he was transferred out of the district, as noticed hereinabove and for the reasons already stated hereinabove to the effect that the petition as far as the same relates to the corrupt practice under sub section (7) of Section 123 of the 1951 Act lacks in material facts viz. status of Dr. Anil Dhiman as a ’gazetted officer’ and ‘consent’ on the part of respondent No.1 or his election agent and as such does not disclose any cause of action, this aspect of the matter, to my mind, is of no legal consequence in the given facts and circumstances of the case. 50. The above discussion brings me to hold that the petition which is solely based on the corrupt practice referred to under sub section (7) of Section 123 of 1951 Act is lacking in material facts and is accordingly liable to be dismissed without being put to trial. 51. Both the issues are decided accordingly. 50. The above discussion brings me to hold that the petition which is solely based on the corrupt practice referred to under sub section (7) of Section 123 of 1951 Act is lacking in material facts and is accordingly liable to be dismissed without being put to trial. 51. Both the issues are decided accordingly. Issue No.3 52. According to respondent No.1 copy of the petition supplied to him, which along with notice of the petition issued to him has been brought on record by him in the file containing the documents filed on his behalf, is not a true copy of the petition. On comparison of the two, what emerges is that whereas in the index to the original petition the document added at the top above Sr. No.1 as ‘1A Receipt of Security’, is not mentioned in copy of the index supplied to respondent No.1. Secondly, in copy of form under Order 7, Rule 14 (1) CPC (wrongly mentioned as Order 7, Rule 13 (1) CPC) at page 14 of the file containing list of documents filed on behalf of respondent No.1, date of filing, which in the original form is given as 29.01.13, does not find place. And lastly whereas in the copy of the complaint dated 31.10.2012, sent by said Sh. Dev Ashish Bhatacharya to the Chief Election Commissioner of India, New Delhi, there is cutting and an illegible overwriting in the last line of the first page in the end, which is missing in the copy supplied to respondent No.1. These additions/omissions being of insignificant nature have no bearing, whatsoever, in the given facts and circumstances of the case and more so when copy of the receipt showing deposit of security of Rs. 2000/- at the time of filing the petition, does not form part of the petition and as such was not required to be supplied to respondent No.1. C.P. Joshi vs. Kalyan Singh Chouhan & Anr., AIR 2010 Rajasthan 100, relied upon. 53. A perusal of the copy of the petition supplied to respondent No.1 would go to show that though the same has been signed by the petitioner on each page, yet without stating the same to be a true copy of the petition. However, it would also not make any difference in the given facts and circumstances of the case. 53. A perusal of the copy of the petition supplied to respondent No.1 would go to show that though the same has been signed by the petitioner on each page, yet without stating the same to be a true copy of the petition. However, it would also not make any difference in the given facts and circumstances of the case. Please see Kanak Vardhan Singhydeo vs. Sri Bibekananda Meher and others, AIR 1991 Orissa 231, head note (c). 54. Accordingly the issue is held in negative. Issue No.4 55. The manner in which the pleadings are required to be verified is set out under Order 6, Rule 15, which reads as under:- “15. Verification of pleadings (1) Save as otherwise provided by any law for the time being in force, every pleading shall be varied at the foot by the party or by one of the parties pleading or by some other person proved to the satisfaction of the Court to be acquainted with the facts of the case. (2) The person verifying shall specify, by reference to the numbered paragraphs of the pleading, what he verifies of his own knowledge and what he verifies upon information received and believed to be true. (3) The verification shall be signed by the person making it and shall state the date on which and the place at which it was signed. 1[(4) The person verifying the pleading shall also furnish an affidavit in support of his pleadings.]” 56. In the present case the petition has been verified as under:- “I Ramesh Chand, s/o Shri Chenu Ram, he above named petitioner, do hereby solemnly affirm and declare on oath that the contents of paras 1 to 16 of this petition are true and correct to the best of my knowledge and belief and nothing material has been concealed therein.” 57. A perusal of the above verification would go to show that all the paras thereof from 1 to 16 have been stated to be true and correct to the best of knowledge and belief of the petitioner, but, according to respondent No.1, it is not shown as to how the petitioner could have derived knowledge and belief about the averments set up in all the paras of the petition from his personal knowledge and belief and more so when from the very nature of the information, the same is based on outside sources and not from personal knowledge and belief of the petitioner. However, in this regard suffice it to say that this contention of respondent No.1 does not deserve any favorable consideration at this state of the proceedings. Verification of the replication also stands on the same footing. 58. As per Rule 94A of the Conduct of Election Rules 1961, an affidavit in support of election petition is required to be in Form 25, which is as under:- “Form 25 (see rule 94A) AFFIDAVIT I, ……………………., the petitioner in the accompanying election petition calling in question the election of Shri/Shrimati …………………. (respondent No……………….. in the said petition) make solemn affirmation/oath and say- (a) that the statements made in paragraphs …………. of the accompanying election petition about the commission of the corrupt practice of* ……………… and the particulars of such corrupt practice mentioned in paragraphs ……………….. of the same petition and in paragraphs ……………… of the Schedule annexed thereto are true to my knowledge; (b) that the statements made in paragraphs ……………….. of the said petition about the commission of the corrupt practice of* ……………… and the particulars of such corrupt practice given in paragraphs ………………. of the said petition and in paragraphs ………………….. of the Schedule annexed thereto are true to my information: (c) (d) etc. Signature of deponent Solemnly affirmed/sworn by Shri/ Shrimati ………………. at ………….this………. day of …………… 20………….. Before me, Magistrate of the first class/ Notary/Commissioner of Oaths. *Here specify the name of the corrupt practice.” 59. The affidavit in support of the petition contains the following recitals vide paras 1 and 2:- “1. Signature of deponent Solemnly affirmed/sworn by Shri/ Shrimati ………………. at ………….this………. day of …………… 20………….. Before me, Magistrate of the first class/ Notary/Commissioner of Oaths. *Here specify the name of the corrupt practice.” 59. The affidavit in support of the petition contains the following recitals vide paras 1 and 2:- “1. That the accompanying Petition has been drafted at my instance and under my instructions and the contents of paras 1 to 16 of the same are true to the best of my personal knowledge and belief and nothing material has been concealed therefrom. 2. That the contents of this affidavit of mine are true and correct to the best of my knowledge and belief and nothing material has been concealed therefrom.” 60. As far as the affidavit is concerned, it shall also be governed by the same reasoning as adopted in respect of verification of the petition and the objection raised in this regard can also not be adjudicated upon at this stage of the proceedings. 61. In view of the above findings on issues No. 5 and 6, the petition is held to be lacking in material facts, as required under Section 83 (1) (a) of the 1951 Act and as such does not disclose any cause of action and is accordingly dismissed with costs of Rs. 25,000/- (rupees Twenty Five thousand). 62. Let follow up action in terms of Section 103 of the Representation of People Act, 1951, read with Rule 28 of the ‘Rules of Procedure and Guidance in the matters of trial of Election Petitions under Part-VI of the Representation of People Act, 1951’ as amended, contained in Appendix-II to ‘the High Court of Himachal Pradesh Original Side Rules, 1997’, be taken by the Registry forthwith.