Whether plaint can be rejected if material facts constituting cause of action not pleaded?
47. The cause of action is a bundle of all primary facts, which, if proved, would entitle to a relief claimed in the petition.
Shri Manohar, the learned Senior Advocate does not dispute the position of law that for the purpose of deciding the application under Order VII Rule 11(a) of the Code of Civil Procedure, the court has to proceed on the assumption that the contents of the petition are true and correct. What are the material facts, would depend upon the facts and circumstances of each case. These are all the principles of law laid down in the decisions of the Apex Court in cases of (i) Charan Dass v. Surinder Kumar and others, reported in 1995 Supp.(3) SCC 318, (ii) Anil Vasudeo Salgaonkar v. Naresh Kushali Shigaonkar, reported in (2009) 9 SCC 310, and
(iii) Jitu Patnaik v. Sanatan Mohakud and others, reported in (2012) 4 SCC 194, relied upon by Shri Manohar.
Coming to the Item No.(iv), it is necessary for the petitioner to plead the material fact that prior to the date of delivery of nomination paper under Section 33(1) of the said Act, the charge/charges were framed against the respondent No.1 in respect of the offences which are not disclosed in Column (5)(i) in the affidavit in Form No.26 by the Court of competent jurisdiction. The date of framing of charge/charges becomes a material fact. Such pleading is significant to make out a case under Section 33-A(1)(i) of the said Act. Shri Manohar is right in urging that in the present case, neither a specific date of framing such charge is pleaded nor the pleading is that the charge was framed prior to the date of delivery of nomination paper by the respondent No.1. Such pleadings are completely absent in the petition.
For the purpose of this application, I proceed on the footing that Column (5)(ii) in Form No.26 is the part and parcel of Section 33-A(1)(i) and (ii) of the said Act and all the undisclosed three cases were required to be disclosed at least in Column (5)(ii) of the affidavit in Form No.26 by the respondent No.1. In order to show such failure to comply, what is required to be pleaded in the petition as a material fact is that the cognizance of the offences in which respondent No.1 is accused, was taken by the Court of competent jurisdiction prior to the date of delivery of nomination paper under Section 33(1) of the said Act.
The date of taking cognizance is a material fact which is also required to be stated in Item (a) in Column (5)(ii) in Form No.26.
It is, therefore, required to be pleaded in the petition, the significance of it being that it raises a presumption about the knowledge of the pending cases to the respondent No.1. There is neither a specific date of taking cognizance pleaded nor the pleading is that the cognizance was taken prior to the date of delivery of nomination paper by the respondent No.1. Such pleadings are completely absent in this petition. Merely because the respondent No.1 is shown to have been released on execution of bail bond of Rs.3000/- on 18-9-2000, that by itself does not mean that prior to the date of delivery of nomination paper, either the case was pending against him or the Court had taken cognizance of the offences alleged against him. The lack of pleading regarding such material facts becomes fatal for the Court to proceed on the trial of the election petition.
Bombay High Court
Satish Mahadeorao Uke vs Devendra Gangadhar Fadnavis And ... on 19 August, 2015
Bench: Ravi K. Deshpande
Civil Application No.993 of 2015 In Election Petition No.1 of 2014
Citation:2016(2) MHLJ639
Citation:2016(2) MHLJ639
https://www.lawweb.in/2016/06/whether-plaint-can-be-rejected-if.html
