1 IN THE HIGH COURT OF KARNATAKA AT DHARWAD DATED THIS THE 25TH DAY OF MARCH, 2025 BEFORE THE HON'BLE MR JUSTICE ANANT RAMANATH HEGDE EP NO.100001 OF 2023 BETWEEN: MAHESH N ROKHADE S/O. NARAYANA, AGED ABOUT 43 YEARS, R/AT. NO.3257/1, RACHOTESWRA GUDI HINDE MANVIYAR, ONI OKKALGERI, GADAG, KARNATAKA-582101. ...PETITIONER (BY SMT PRAMILA NESARGI, SENIOR COUNSEL FOR SRI GANESH RAIBAGI, ADVOCATE) AND: H. K. PATIL S/O. K. H. PATIL, AGED ABOUT 69 YEARS, R/AT. TALEGERI ONI, HULKOTI TQ., DIST. GADAG-582205. ...RESPONDENT (BY SRI K L PATIL, ADVOCATE) THIS ELECTION PETITION IS FILED UNDER SECTION 81 OF THE REPRSENTATION OF PEOPLE ACT, 1951 PRAYING TO A) TO DECLARE THAT THE DECLARATION OF RESULTS OF RESPONDENT NO.1, ANNEXURE-A DATED 13.05.2023 FOR THE ASSEMBLY CONSTITUENCY-66 GADAG AS VOID AND ETC. 2 THIS ELECTION PETITION HAVING BEEN HEARD AND RESERVED FOR ORDERS ON 04TH FEBRUARY, 2025 AND COMING ON FOR PRONOUNCEMENT THIS DAY, THE COURT PRONOUNCED THE FOLLOWING: CORAM: HON'BLE MR JUSTICE ANANT RAMANATH HEGDE CAV ORDER The petitioner has filed this Election Petition under Section 81 of the Representation of Peoples Act, 1951 (for short ‘Act of 1951’) challenging the election of the respondent, the returned candidate from 66-Gadag Assembly Constituency in the assembly elections held in Karnataka 2023. 2. The respondent-elected candidate has invoked Order VII Rule 11 of the Code of Civil Procedure (for short 'Code') to reject the petition on two grounds namely; (a) the petition does not disclose the cause of action; (b) the petition is barred under law. 3. The petitioner has filed objection to the said application and contends that the matter requires a trial to adjudicate the contentions raised in the petition. 3 4. The relief sought by the petitioner can be summarised as under: (a) To declare that respondent’s election from 66-Gadag Assembly Constituency as void. (b) To declare that the respondent has committed corrupt practice under Sections 123(1), 123(2), 123(4) and 123(6) of the Act of 1951. (c) To declare that the result of election of respondent has been materially affected by the improper reception and counting of votes under Section 100(1)(a),(d)(iv) of the Act of 1951 and to disqualify the respondent for 6 years from contesting elections. (d) A declaration is also sought to declare that the votes received and counted in favour of the respondent as improper and prayer is also made to take further consequential actions. 5. The respondent/applicant has primarily based contentions on two judgments rendered by the co-ordinate Bench 4 of this Court in Smt. B.Lakshmidevi vs. Sri. Rizwan Arshad1 and Sri. Shashank J.Sreedhara vs. Sri. B.Z.Zameer Ahmed Khan2, in addition to the judgments of the Apex Court in S.Subramaniam Balaji vs State of Tamil Nadu and others3 and Kanimozhi Karunanidhi vs. A Santhana Kumar and others4. 6. Sri.K.L.Patil, the learned counsel appearing for the applicant/respondent would contend: (a) It is the prerogative of the political parties to hold out promises to be performed, through election manifesto, in the event being elected. Such promises cannot be termed as ‘bribery’ under Section 123 of the Act of 1951. (b) The petition is filed on the sole ground that the guarantees promised in the election manifesto amount to ‘bribery’ under Section 123 of the Act of 1951. The Apex Court in the case of S.Subramaniam Balaji supra, has held that the promises 1 E.P.No.14/2023 2 EP No.15/2023 3 (2013) 9 SCC 659 4(2013) 9 SCC 659 5 made in election manifesto cannot be construed as bribery under Section 123 of the Act of 1951. Thus, there is no cause of action in the eye of law in view of the declaration of law by the Apex Court in the case referred to supra. (c) In S.Subramaniam Balaji supra, the Apex Court has held that promises made by the political parties need not be universal and it can target a particular section of the society and exclusion of some others from the promises made in the manifesto cannot be termed as violative of Article 14 of the Constitution of India. (d) The Model Code of Conduct prescribed by the Election Commission cannot be construed as a law and its violation vis-à- vis, the election manifesto is not a ground to set-aside the election as such ground is not enumerated in Section 100 of the Act of 1951. (e) The requirement of pleading in an Election Petition stands on a different footing than the other petitions and the pleading must be specific and must contain material facts. Unless 6 the material facts are averred, it will not constitute the cause of action to file the petition. (f) The averments in this petition are similar to the averments in the election petitions already rejected in Smt. B.Lakshmidevi and Sri. Shashank J.Sreedhara supra, thus, the issue raised by the respondent is covered in terms of the judgments in above referred cases where the order rejecting the petitions have been upheld by the Apex Court as the Special Leave Petitions against the above mentioned orders are rejected. 7. The learned Senior counsel Smt. Pramila Nesargi, appearing on behalf of the petitioner would urge that: (i) While considering the application under Order VII Rule 11 of the Code, only the averments made in the petition/plaint is to be looked into and the averments made in the written statement are not the guiding factors to reject the petition/plaint if the application is filed to get the petition for want of cause of action. 7 (ii) The averment that the challenge to the election is not just confined to the sole ground of “corrupt practice” qua the guarantees offered by the State Unit of Indian National Congress, but also on the ground that the election manifesto violates the right under Article of 14 of the Constitution of India and said contention is tenable under Section 100(1)(d)(iv) of the Act of 1951. (iii) The election is vitiated by undue influence on the voters. (iv) In S.Subramaniam Balaji supra, the Apex Court has held that the election manifesto by itself cannot amount to corrupt practice, but in the said case, after examining the election manifesto which was subject matter of challenge has concluded that the election manifesto is in conformity with constitutional provision. Thus, whether the election manifesto in question in the present case conforms to the constitutional provision requires consideration at the trial. (v) Averments made in the petition do not enable the respondent to invoke any of the clauses of Order VII Rule 11 of 8 the Code and the petition cannot be rejected based on the contentions in the statement of objections filed by the respondent. (vi) The question as to whether the election manifesto conforms to the constitutional provision is not decided in the judgments delivered by the co-ordinate benches. (vii) The petitioner has also raised a ground relating to the expenditure made beyond permissible limit and the said ground can be contested only in case, the petitioner is given an opportunity to lead evidence and the application filed for rejecting the petition is not maintainable. (viii) The Special Leave Petition while challenging the order in Shashank J. Sridhara supra, the Apex Court in Civil Appeal Diary No.20533/2024 has held that the question of law as to whether the commitments by a political party in its manifesto, which eventually lead to direct or indirect financial help to the public at large will also amount to corrupt practice by a candidate of that party is kept open to be decided in an appropriate case and the law on this point is not yet settled finally. 9 (ix) The correctness of the law in S.Subramaniam Balaji supra is doubted and the matter is referred to larger Bench as such the respondent cannot seek to rely on the ratio in S.Subramaniam Balaji supra. 8. Learned Senior counsel for the petitioner relied on the following judgments to contend that the promise in election manifesto if not in conformity with the provisions of the Constitution can be a ground to set aside the election of a returned candidate: (i) S.Subramaniam Balaji Vs. State of Tamil Nadu, (2013) 9 SCC 659 (ii) Ashwini Kumar Upadhya Vs. Union of India , (2023) 14 SCC 611 (iii) Ashwini Kumar Upadhya Vs. Union of India, (2023) 8 SCC 402. (iv) Ramesh Baghel Vs State of Chattisgarh and others, 2025 SCC Online SC 173. (v) Bomley London Borough Council Vs. Greater London Council and another, (1983) 1 AC 768. 9. Before considering the question whether the pleadings in the petition constitute the cause of action to challenge the 10 election of the respondent under Section 100(1)(d)(iv) of the Act of 1951, it is necessary to keep in mind the law laid down by the Hon’ble Apex Court in S.Subramaniam Balaji supra. In the aforementioned judgment, the Hon’ble Apex Court has framed the following points for consideration: (i) Whether the promises made by the political parties in the election manifesto would amount to ‘corrupt practices’ as per Section 123 of the Act of 1951 ? (ii) Whether the Schemes under challenge are within the ambit of public purpose and if yes, are they violative of Article 14? (iii) Whether this Court has inherent power to issue guidelines by application of Vishaka vs State of Rajasthan [(1997) 6 SCC 241] principle? (iv) Whether the Comptroller and Auditor General of India has a duty to examine expenditures even before they are deployed? (v) Whether the writ jurisdiction will lie against a political party? 11 10. The question No.1 referred to above is answered holding that the promises in the election manifesto by itself do not amount to corrupt practice. And in the context of the said case, the Apex Court held that the election manifesto under scrutiny in the said case is in conformity with the provisions of the Constitution of India. 11. Paragraph No.84 in S.Subramaniam Balaji supra which is relied on by both parties is extracted as under: "84. Summary: 84.1. After examining and considering the parameters laid down in Section 123 of RP Act, we arrived at a conclusion that the promises in the election manifesto cannot be read into Section 123 for declaring it to be a corrupt practice. Thus, promises in the election manifesto do not constitute as a corrupt practice under the prevailing law. A reference to a decision of this Court will be timely. In Ramchandra G. Kapse vs. Haribansh Ramakbal Singh (1996) 1 SCC 206 this Court held that: 12 “21.....Ex facie contents of a manifesto, by itself, cannot be a corrupt practice committed by a candidate of that party.” 84.2. Further, it has been decided that the scheme challenged in this writ petition falls within the realm of fulfilling the Directive Principles of State policy thereby falling within the scope of public purpose. 84.3. The mandate of the Constitution provides various checks and balances before a scheme can be implemented. Therefore, as long as the scheme come within the realm of public purpose and monies withdrawn for the implementation of scheme by passing suitable Appropriation Bill, the court has limited jurisdiction to interfere in such scheme. 84.4. We have also emphasized on the fact that judicial interference is permissible only when the action of the government is unconstitutional or contrary to a statutory provision and not when such action is not wise or that the extent of expenditure is not for the good of the State. 84.5. It is also asserted that the scheme challenged under this petition are in consonance with Article 14 of the Constitution. 13 84.6. As there is no legislative vacuum in the case on hand, the scope for application of Vishaka vs. State of Rajasthan, (1997) 6 SCC 241 principle does not arise. 84.7. The duty of the CAG will arise only after the expenditure has incurred. 84.8. Since this petition is fit for dismissal dehors the jurisdiction issue, the issue of jurisdiction is left open." 12. In paragraph No.84.1, the Apex Court has held that the election manifesto cannot be read into Section 123 of the Act of 1951 and the promises in the election manifesto do not constitute a corrupt practice under the prevailing law. At the same time, the Apex Court has clarified that election manifesto by itself cannot be a corrupt practice. And in paragraph No.84.5, it has further held that the scheme under challenge in the said case is in consonance with Article 14 of the Constitution of India. 13. In paragraph No.84.4 of the above said judgment, the Hon'ble Apex Court has held that the judicial interference is permissible only when the action of the Government is unconstitutional or contrary to the statutory provision and not when such action is not wise or the extent of expenditure is not 14 for the good of the State. Paragraph No.84.4 in S.Subramaniam Balaji supra, cannot be read like a Statute. The finding in paragraph No.84.4 in S.Subramaniam Balaji supra has to be read and understood in the context of Section 100 of the Act of 1951 because the grounds for declaring election to be void are found in Section 100 the Act of 1951. And Section 100 of the Act of 1951 exhaustively enumerates the grounds for challenging the election of a returned candidate. Thus, it appears that the election manifesto not being in conformity with the Constitution of India can be a ground to challenge the election of a returned candidate under Section 100(1)(d)(iv) of the Act of 1951. 14. Two Co-ordinate Benches of this Court in Smt. B Lakshmidevi and Sri. Shashank J.Sreedhara supra, have already taken a view that the promise made in the election manifesto will not amount to “bribery” under Section 123 of the Act of 1951. Admittedly, the orders rejecting those two petitions under Order VII Rule 11 of the Code have attained finality as Special Leave Petitions challenging the said orders have been dismissed. In Civil Appeal Diary No.20533/2022, Sri. Shashank J.Sreedhara supra, the Apex Court observed as under: 15 “3. The contention of the learned counsel that the commitments by a political party in its manifesto, which eventually lead to direct or indirect financial help to the public at large, will also amount to corrupt practice by a candidate of that party, is too farfetched and cannot be accepted. In any case, in the facts and circumstances of these cases, we need not to go into such question elaborately. The appeals are, accordingly, dismissed. 4. However, the question of law is kept open to be decided in an appropriate case.” 15. Though the question of law is kept open to be decided in appropriate case, for two reasons, this Court is not inclined to take a different view. (a) The allegation relating to corrupt practice in the present petition is based on the same election manifesto that was under scrutiny in Sri. Shashank J. Sreedhara supra. (b) The law in S.Subramaniam Balaji supra, declared by the Apex Court is not yet overruled or diluted though its 16 correctness is doubted and matter is referred to Larger Bench in Ashwini Kumar Upadhya supra. At this juncture, it is to be noticed that merely because the matter is referred to the larger Bench by the Apex Court to reconsider the law laid down in a case, the law laid down does not cease to operate. It binds all Courts till it is overruled or modified, as held in Union Territory of Ladakh vs Jammu Kashmir National Conference(2023 SCC OnLine 1140). 16. In view of the dismissal of the petition challenging the order in Shashanka J. Sreedhara supra, this Court does not deem it necessary to refer in detail, the judgments relied on by the learned Senior counsel for the petitioner that the plaint averments alone should be considered to decide the application under Order VII Rule 11 of the Code. However, this Court has kept in mind, the law declared on rejection of plaint in Kamala vs K.T. Eswara (2008) 12 SCC 661], Bhauram vs Janak Singh (2012) 8 SCC 701, Ponnala Lakshmaiha vs Kommuri Pratap Reddy (2012) 7 SCC 788 and few other judgments. 17 17. The law on the point is well settled. While considering the application under Order VII Rule 11 of the Code, only the plaint averments should be considered and not the contentions in the written statement or the evidence. 18. Since it is urged that two petitions containing similar averments alleging corrupt practice have been rejected by this Court and confirmed by the Hon’ble Apex Court, in the peculiar facts of this case, where it is urged that the question raised in this petition is answered by two co-ordinate benches, this Court has also considered the averments made in the other two petitions as well. 19. It is also well settled that the plaint has to be considered in its entirety and the application for rejecting the plaint cannot be decided with reference to few sentences here and there in the plaint. 20. While considering the entire petition averments, this Court has also taken into consideration, the emphasis laid on certain paragraphs, by the learned Senior counsel to urge that “material facts” have been pleaded in those paragraphs. Those 18 paragraphs have been extracted below in paragraph No.27 of this order while considering the sufficiency of pleading relating to cause of action. However, suffice to say that the pleadings relating to corrupt practice in the instant petition are based on the election manifesto. The guarantees and freebies offered in the election manifesto in the present petition are same as in the petitions in Smt. B.Lakshmidevi as well as Sri. Shashank J.Sreedhara supra. Thus, the contention that the election of respondent candidate is vitiated by corrupt practice qua election manifesto is untenable and same cannot be accepted in the light of law declared by the Apex Court in the case of S.Subramaniam Balaji supra and orders in similar petitions namely Smt. B.Lakshmidevi and Sri. Shashank J.Sreedhara supra. 21. Learned Senior counsel appearing for the petitioner has urged that the law in S.Subramaniam Balaji supra is per in curium on the premise that the said judgment overlooks the law laid down in Minerva Mills vs Union of India (1980) 3 SCC 625, S.R.Bommai vs Union of India AIR 1994 SC 1918, State of Madras vs Champakam Dorairajan (1951) 1 SC 351, E.P Royappa vs State of Tamilnadu (1974) 4 SCC 3, 19 Vaman Rao vs Union of India (1981) 2 SCC 362, Charanlal Sahu vs Giani Zail Singh (1984) 1 SCC 390. Referring to the judgments, it is urged that the Apex Court has held that the violation of constitutional provisions and election manifesto not being in conformity with the constitutional provisions, constitutes a cause of action to challenge the election. 22. This Court has referred to the aforementioned judgments. Except the judgment in Charanlal Sahu supra, rest are not rendered in the context of an election petition. Thus, this Court is unable to accept that the judgment in S.Subramaniam Balaji supra is per in curium. 23. In Charanlal Sahu supra, the Apex Court was dealing with the election of the President of India which is governed by a different Statute. The question relating corrupt practice qua election manifesto did not arise in the said case. However, even in the said judgment, the Apex Court in paragraph 30 has held that the pleading in an election petition has to be precise, specific and unambiguous so as to put the respondent on notice. The rule 20 of pleadings that facts that constitute the cause of action must be specifically pleaded is as fundamental as it is elementary. 24. Nevertheless in S.Subramaniam Balaji supra, the Apex Court has held that the Court’s interference is permissible in an election in case, the election is held contrary to the constitutional provisions or the applicable Acts and Rules. 25. This Court has observed that paragraph No.84.4 referred to supra in SUBRAMANIAM BALAJI has to be read in the context of Section 100 of the Act of 1951, the Court has to find as to whether material facts are pleaded to attract Section 100(1)(d)(iv) of the Act of 1951 to challenge the election of a returned candidate complaining violation of the constitutional provisions of the Act, Rules or the Orders passed under the Act of 1951. 26. In addition, the Court has to decide whether the pleading in the petition meets the requirement of Section 83 of the Act of 1951 as well. 21 27. The learned Senior counsel appearing for the petitioner has invited the attention of the Court to the following portions in the petition which according to the petitioner are the material facts attracting Section 100(1)(d)(iv) of the Act of 1951. “13. The said 5 guarantees are the corrupt practices amounting to bribery. The said guarantees are in the nature of offer and promises made by the candidate of the "Indian national congress" party. This was done with the consent of the respondent No.1 in the form of gratification to the electorate of this Constituency and with the object of directly inducing the electorate to vote for the Congress party candidate namely the Respondent No.1. The consideration was the vote in favour of the respondent No.1 as a gratification with the motive and reward. 14c. These guidelines were incorporated as Part VIII of the Model Code of Conduct and it was clarified that the above guidelines would be applicable from the date, a political party issues its manifesto irrespective of whether such date is before or after the date of announcement of the election scheduled by the Election Commission. These guidelines are as follows: (i) The election manifesto shall not contain anything repugnant to the ideals and principles enshrined in the Constitution and further that it shall be consistent with the letter and spirit of other provisions of Model Code of Conduct. (ii) The Directive Principles of State Policy enshrined in the Constitution enjoin upon the State to frame various welfare measures for the citizens and therefore 22 there can be no objection to the promise of such welfare in election manifesto. However, political parties should avoid making those promises which are likely to vitiate the purity of the election process or exert undue influence on the voters in exercising their franchise. (iii) In the interest of transparency, level playing field and credibility of promises, it is expected that manifesto also reflect the rationale for the promises and broadly indicate the ways and means to meet the financial requirement for it. Trust of voters should be sought only on those promises which are possible to be fulfilled." 25. The said scheme is sought to be implemented with an idea of "Free For all Women", "No holds barred", conferring free facilities, free bus, free travel, free allowance for women are the scheme infringing Article 14 of the Constitution of India by discriminating men who are travelling inasmuch as there cannot be any discrimination on the ground of sex. 35. …. In the instant case, the Guarantee No.5 Scheme "Shakthi", they discriminate between men and women and assuring promises only to women which is contrary to Article 14 of the Constitution of India. As far as Guarantee No.2, "Gruha Lakshmi" Scheme, again the amount of Rs.2,000/- per month payable to women is induced in exercise of vote in favorable of respondent no.1 and his party…. 49. The manifesto are for the benefit of the Congress Party. The manifesto was prepared with consent of all the leaders and candidates. In the instant case the respondent no.1 gave consent for manifesto and was nominated by congress as their candidate. 23 51. The offer and promise made by the political party to guarantee free travel for women in particular is a reward for their votes, amounts to corrupt practice U/s. 123 of the Representation of Peoples Act, 1951 as stated above. 53. ….The overall promise was The made by the Respondent and the workers and by the party with the consent of the Respondent No.1 offering gratification with the object of directly inducing to vote…. 54. In the instant case, the five Guarantees have been offered as gratification for voting and got the assurances from the voters and the electorate expected to vote for them in view of the guarantees and this offer and promises of five guarantees was as a reward for getting votes in their favor. 55. The manner in which the canvass was done by distributing the Manifesto and the guarantee cards and in turn getting assurances from the voters. There was an element of bargain while distributing the guarantee cards for exercise of votes in favor of Respondent as a consideration the guarantees were offered. 55(b) Besides the Manifesto the Respondent No.1 has also got his Manifesto published in various print media and electronic media and thereby published it through his party which are binding on him and the said publications are with his consent. 64. According to Election Commission the Manifesto shall not contain repugnant to the ideals and principles enshrined in the Constitution and further that it shall be consistent with the letter and spirit of other previsions of model code of conduct." 24 28. Before dealing with the pleadings in the election petition, it is necessary to refer to few paragraphs in Khanimozhi supra, which extensively dealt with the requirement of pleadings in an election petition and they are extracted as under: “22. The law so far developed and settled by this Court with regard to the non-compliance of the requirement of Section 83(1)(a) of the EP Act, namely - “an Election petition must contain a concise statement of material facts on which the petitioner relies”, is that such non-compliance of Section 83(1)(a) read with Order VII Rule 11 CPC, may entail dismissal of the Election Petition right at the threshold. “Material facts” are facts which if established would give the petitioner the relief asked for. 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. 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. Material facts would include positive statement of facts as also positive statement of a negative fact. A Three-Judge Bench in Hari Shanker Jain v. Sonia Gandhi (supra) had an occasion to deal with Section 83(1)(a) of the RP Act and the Court dismissed the Election petition holding that the bald and vague averments made in the election petitions do not satisfy the requirements of pleading “material facts” within the meaning of Section 83(1)(a) of the RP Act read with the requirements of Order VII Rule 11 CPC. It was observed in para 23 and 24 as under:— 25 “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 Civil Procedure Code, 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 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. Balkrishna v. George Fernandez [(1969) 3 SCC 238 : (1969) 3 SCR 603], Jitendra 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. 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 26 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.” 25. In case of Mahadeorao Sukaji Shivankar v. Ramaratan Bapu10, a Three-Judge Bench of this Court again had an occasion to deal with the issues as to what would constitute “material facts” and what would be the consequences of not stating the “material facts” in the Election petition, as contemplated in Section 83(1)(a) of the RP Act, and the Court observed as under: “6. Now, it is no doubt true that all material facts have to be set out in an election petition. If material facts are not stated in a plaint or a petition, the same is liable to be dismissed on that ground alone as the case would be covered by clause (a) of Rule 11 of Order 7 of the Code. The question, however, is as to whether the petitioner had set out material facts in the election petition. The expression “material facts” has neither been defined in the Act nor in the Code. It may be stated that the material facts are those facts upon which a party relies for his claim or defence. In other words, material facts are facts upon which the 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 27 party to establish existence of cause of action or defence are material facts and must be stated in the pleading of the party. 7. But, it is equally well settled that there is distinction between “material facts” and “particulars”. Material facts are primary or basic facts which must be pleaded by the petitioner 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 finishing touch to the basic contours of a picture already drawn so as to make it full, more clear and more informative. Particulars ensure conduct of fair trial and would not take the opposite party by surprise.” 26. In Anil Vasudev Salgaonkar v. Naresh Kushali Shigaonkar11, this Court has discussed number of earlier decisions on the issue as to when the Election petition could be dismissed summarily if it does not furnish the cause of action in exercise of powers under the Code of Civil Procedure read with Section 83 of the R.P. Act. “50. The position is well settled that an election petition can be summarily dismissed if it does not furnish the cause of action in exercise of the power under the Code of Civil Procedure. Appropriate orders in exercise of powers under the Code can be passed if the mandatory requirements enjoined by Section 83 of the Act to incorporate the material facts in the election petition are not complied with. 28 51. This Court in Samant N. Balkrishna case [(1969) 3 SCC 238] has expressed itself in no uncertain terms that the omission of a single material fact would lead to an incomplete cause of action and that an election petition without the material facts relating to a corrupt practice is not an election petition at all. xxxxxxxxxxx 52.In V.Narayanaswamy v. C.P. Thirunavukkarasu [(2000) 2 SCC 294] this Court reiterated the legal position that an election petition is liable to be dismissed if it lacks in material facts. In L.R. Shivaramagowda v. T.M. Chandrashekar [(1999) 1 SCC 666] this Court again considered the importance of pleadings in an election petition alleging corrupt practice falling within the scope of Section 123 of the Act and observed as under : (SCC p. 677, para 11) “11. This Court has repeatedly stressed the importance of pleadings in an election petition and pointed out the difference between ‘material facts’ and ‘material particulars’. While the failure to plead material facts is fatal to the election petition and no amendment of the pleading could be allowed to introduce such material facts after the time-limit prescribed for filing the election petition, the absence of material particulars can be cured at a later stage by an appropriate amendment.” 53. In Udhav Singh case [(1977) 1 SCC 511] this Court observed as under : (SCC pp. 522-23, para 41) “41. Like the Code of Civil Procedure, this section also envisages a distinction between ‘material facts’ and ‘material particulars’. Clause (a) of sub- section (1) corresponds to Order 6 Rule 2, while clause (b) is analogous to Order 6 Rules 4 and 6 of the Code. The distinction between 29 ‘material facts’ and ‘material particulars’ is important because different consequences may flow from a deficiency of such facts or particulars in the pleading. Failure to plead even a single material fact leads to an incomplete cause of action and incomplete allegations of such a charge are liable to be struck off under Order 6 Rule 16, Code of Civil Procedure. If the petition is based solely on those allegations which suffer from lack of material facts, the petition is liable to be summarily rejected for want of a cause of action. In the case of a petition suffering from a deficiency of material particulars, the court has a discretion to allow the petitioner to supply the required particulars even after the expiry of limitation.” 54. In H.D. Revanna case [(1999) 2 SCC 217] the appeal was filed by the candidate who had succeeded in the election and whose application for dismissal of the election petition in limine was rejected by the High Court. This Court noticed that it has been laid down by this Court that non-compliance with the provisions of Section 83 may lead to dismissal of the petition if the matter falls within the scope of Order 6 Rule 16 and Order 7 Rule 11 of the Code of Civil Procedure. xxxxxxxxxx 55. In Harkirat Singh v. Amrinder Singh [(2005) 13 SCC 511] this Court again reiterated 30 the distinction between “material facts” and “material particulars” and observed as under : (SCC p. 527, paras 51-52) “51. 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. 52. 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.” 56. In Sudarsha Avasthi v. Shiv Pal Singh [(2008) 7 SCC 604] this Court observed as under : (SCC p. 612, para 20) “20. The election petition is a serious matter and it cannot be treated lightly or in 31 a fanciful manner nor is it given to a person who uses this as a handle for vexatious purpose.” 57. There is no definition of “material facts” either in the Representation of the People Act, 1951 nor in the Code of Civil Procedure. In a series of judgments, this Court has laid down that all facts necessary to formulate a complete cause of action should be termed as “material facts”. All basic and primary facts which must be proved by a party to establish the existence of cause of action or defence are material facts. “Material facts” in other words mean the entire bundle of facts which would constitute a complete cause of action. This Court in Harkirat Singh case [(2005) 13 SCC 511] tried to give various meanings of “material facts”. The relevant para 48 of the said judgment is reproduced as under : (SCC pp. 526-27) “48. 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 (3rd Edn.), p. 349.] The phrase ‘material facts’, therefore, may be said to be those facts upon which a party relies for its 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 32 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.” 27. In Ram Sukh v. Dinesh Aggarwal (supra), this Court again while examining the maintainability of Election petition filed under Section 100(1)(d)(iv) of the RP Act, elaborately considered the earlier decisions and observed that it was necessary for the election petitioner to aver specifically in what manner the result of the election in so far as it concerned the returned candidate was materially affected due to omission on the part of the Returning Officer. The Court in the said case having found that such averments being missing in the Election petition, upheld the judgment of the High Court/Election Tribunal rejecting the Election petition at the threshold. xxxxx:— (emphasis supplied) “14. The requirement in an election petition as to the statement of material facts and the consequences of lack of such disclosure with reference to Sections 81, 83 and 86 of the Act came up for consideration before a three-Judge Bench of this Court in Samant N. Balkrishna v. George Fernandez [(1969) 3 SCC 238]. Speaking for the three-Judge Bench, M. Hidayatullah, C.J., inter alia, laid down that: 33 (i) Section 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. 15. 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 the distinction between the phrases “material facts” as appearing in clause (a) and “particulars” as appearing in clause (b) of sub-section (1) of Section 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 the opposite party is not taken by surprise. 34 16. The distinction between “material facts” and “particulars” and their requirement in an election petition was succinctly brought out by this Court in Virender Nath Gautam v. Satpal Singh [(2007) 3 SCC 617] wherein C.K. Thakker, J., stated thus : (SCC pp. 631-32, para 50) “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.” 17. xxxx 18. Undoubtedly, by virtue of Section 87 of the Act, the provisions of the Code apply to the trial of an election petition and, therefore, in the absence of anything to the contrary in the Act, the court trying an election petition can act in exercise of its power under the Code, including Order 6 Rule 16 and Order 7 Rule 11 of the Code. The object of both the provisions is to ensure that meaningless litigation, which is otherwise bound to prove abortive, should not be permitted to occupy the judicial time of the courts. If that is so in matters pertaining to ordinary civil litigation, it must 35 apply with greater vigour in election matters where the pendency of an election petition is likely to inhibit the elected representative of the people in the discharge of his public duties for which the electorate have reposed confidence in him. The submission, therefore, must fail. 19. Coming to the second limb of the argument viz. absence of Section 83 in Section 86 of the Act, which specifically provides for dismissal of an election petition which does not comply with certain provisions of the Act, in our view, the issue is no longer res integra. A similar plea was negatived by a three-Judge Bench of this Court in Hardwari Lal v. Kanwal Singh [(1972) 1 SCC 214], wherein speaking for the Bench, A.N. Ray, J. (as His Lordship then was) said : (SCC p. 221, para 23) “23. Counsel on behalf of the respondent submitted that an election petition could not be dismissed by reason of want of material facts because Section 86 of the Act conferred power on the High Court to dismiss the election petition which did not comply with the provisions of Section 81, or Section 82 or Section 117 of the Act. It was emphasised that Section 83 did not find place in Section 86. Under Section 87 of the Act every election petition shall be tried by the High Court as nearly as may be in accordance with the procedure applicable under the Civil Procedure Code, 1908, to the trial of suits. A suit which does not furnish cause of action can be dismissed.” 36 20. The issue was again dealt with by this Court in Azhar Hussain v. Rajiv Gandhi [1986 Supp SCC 315]. Referring to earlier pronouncements of this Court in Samant N. Balkrishna [(1969) 3 SCC 238] and Udhav Singh v. Madhav Rao Scindia [(1977) 1 SCC 511] wherein it was observed that the omission of a single material fact would lead to incomplete cause of action and that an election petition without the material facts is not an election petition at all, the Bench in Azhar Hussain case [1986 Supp SCC 315] held that all the facts which are essential to clothe the petition with complete cause of action must be pleaded and omission of even a single material fact would amount to disobedience of the mandate of Section 83(1)(a) of the Act and an election petition can be and must be dismissed if it suffers from any such vice. 28. The legal position enunciated in afore- stated cases may be summed up as under:— i. Section 83(1)(a) of RP Act, 1951 mandates that an Election petition shall contain a concise statement of material facts on which the petitioner relies. If material facts are not stated in an Election petition, the same is liable to be dismissed on that ground alone, as the case would be covered by Clause (a) of Rule 11 of Order 7 of the Code. ii. The material facts must be such facts as would afford a basis for the allegations made in the petition and would constitute the cause of action, that is every fact which it would be necessary for the plaintiff/petitioner to prove, if traversed in order to support his right to the judgment of court. Omission of a single material fact 37 would lead to an incomplete cause of action and the statement of plaint would become bad. iii. Material facts mean the entire bundle of facts which would constitute a complete cause of action. Material facts would include positive statement of facts as also positive averment of a negative fact, if necessary. iv. In order to get an election declared as void under Section 100(1)(d)(iv) of the RP Act, the Election petitioner must aver that on account of non-compliance with the provisions of the Constitution or of the Act or any rules or orders made under the Act, the result of the election, in so far as it concerned the returned candidate, was materially affected. v. The Election petition is a serious matter and it cannot be treated lightly or in a fanciful manner nor is it given to a person who uses it as a handle for vexatious purpose. vi. An Election petition can be summarily dismissed on the omission of a single material fact leading to an incomplete cause of action, or omission to contain a concise statement of material facts on which the petitioner relies for establishing a cause of action, in exercise of the powers under Clause (a) of Rule 11 of Order VII CPC read with the mandatory requirements enjoined by Section 83 of the RP Act. (emphasis supplied) 38 29. The Apex Court after considering various judgments on the election petitions and the power of the Court to reject the election petition at the threshold invoking Order VII Rule 11 of the Code has formulated the above extracted conclusions on the requirement of pleadings in an election petition. 30. Keeping in mind, the ratio laid down in Khazimoni supra, if the contents of the petition more particularly the extracts of the petition quoted in paragraph No.27 of this order are perused, it is evident that the petition centres around the plea that the election of the respondent is vitiated by corrupt practice on account of the guarantee Scheme. As already noticed, the promises by a political party or the candidate in an election through the election manifesto by itself cannot be a ground to hold that such promises amount to corrupt practice. 31. Section 83 of the Act of 1951 deals with the contents of the Election Petition. Section 83(1)(a) and (b) of the Act of 1951 are relevant for this petition and they are as under: "Section 83.Contents of petition- (1) An election petition - 39 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;" 32. Section 100(1)(d)(iv) of the Act of 1951 reads as under. "100.Grounds for declaring election to be void.— (1) Subject to the provisions of sub-section (2) if the High Court is of opinion— (a) xxx; (d) that the result of the election, in so far as it concerns a returned candidate, has been materially affected— (i) xxx (ii) xx (iii) xxx (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." (emphasis supplied) 40 33. On a meaningful reading of the aforementioned provision, one can notice that if the election of the returned candidate is to be set aside on account of the violation of the constitutional provisions or the Acts or the Rules, one has to establish that the result of the returned candidate is materially affected by such non compliance. This aspect is evident in Section 83(1) r/w Section 100(1)(d)(iv) of the Act of 1951 as the expression, “that the result of the election, insofar as it concerns a returned candidate, has been materially affected” is found in Section 100(1)(d) of the Act of 1951. 34. The Apex Court in Khazimoni supra has noted the distinction between “material facts” and “particulars”. Whether the pleadings relating to violation of provisions of the Constitution of India by itself would constitute the “material facts” or not is the point for consideration. Section 100(1)(d) of the Act of 1951 as already noticed, provides for a ground to declare the election void, in case, the result of the returned candidate has been “materially affected” by the violation of sub-clauses in clause (d) of Sub-section (1) of Section 100. 41 35. Section 100(1)(d) of the Act of 1951 deals with the result of an election which has been "materially affected" under any of the four sub-clauses named therein. Sub Clauses (ii) and (iv) of Section 100(1)(d) are relevant in this petition. Sub Clause (ii) of Section 100(1)(d) deals with corrupt practice in the interest of returned candidate by an agent other than his election agent. The corrupt practice alleged against the respondent is with reference to election manifesto and the freebies offered in the election manifesto. Thus, said ground is not available as already discussed. 36. Sub Clause (iv) deals with non compliance with the provisions of the Constitution of India or of this Act or any Rules or Orders made under this Act. Though, non compliance with the provisions of the Constitution of India or of this Act or any Rules or Orders made under the Act of 1951 appears to be a ground to challenge the election of a returned candidate, the sub-clause (iv) of clause (d) of Section 100 has to be read bearing in mind, the requirement of clause (d) of sub-section (1) of Section 100 of the Act of 1951 which reads as under: 42 “that the result of the election, in so far as it concerns a returned candidate, has been materially affected-“ (emphasis supplied) 37. On a meaningful reading of Section 100(1)(d)(iv) of the Act of 1951, one cannot ignore the rigour and mandate of clause (d) which uses the expression “that the result of the election, insofar as it concerns a returned candidate, has been materially affected”. This being the position, this Court has to hold that non compliance of constitutional provisions or the provisions of the Act of 1951 or any Rules or Orders made under this Act by itself, in all situations, may not be a ground to set- aside the election. In few circumstances, the non-compliance may materially affect the result of the returned candidate and may provide grounds to set aside the election. 38. However, in few other cases, non-compliance of some of the provisions of the Constitution of India or the Act or the Rules may not materially affect the result of the returned candidate, then, the Court may not set-aside the election of the 43 returned candidate. The reason is not far to seek. Section 100(1) of the Act of 1951 also uses the expression, “subject to the provisions of sub-section (2) if the High Court is of the opinion”. The aforesaid expression, if it is read with the requirement of clause (d) of sub-section (1) of Section 100 of the Act of 1951 leads to the conclusion that High Court has to form an opinion that the election of the returned candidate has been materially affected on account of non-compliance of the provisions of the Constitution of India or the Act or the Rules and Orders made under the Act. Hence, to record such opinion, there has to be pleading to the effect that the election result of the returned candidate has been materially affected on account of non-compliance of the constitutional provisions. 39. On a careful consideration of the petition averments, more particularly, the averments extracted above, it is noticed that the petitioner’s attack is on the corrupt practice based on the election manifesto. Indeed, it is true that the petitioner has raised a contention that the election manifesto violates Article 14 of the Constitution of India. However, without any “material facts” being pleaded to the effect that the voters were swayed away by the 44 election manifesto, and without there being any allegation that the respondent was elected because of the election manifesto being contrary to the provisions of the Constitution of India, this Court cannot hold that the said pleading is sufficient to test the petition under Section 100(1)(d)(iv) of the Act of 1951. 40. This Court being aware of the distinction between “material facts” and “material particulars” as noticed in Khanimonzhi supra. It is true that all the details as to how the voters changed their preference in the voting influenced by the election manifesto, may not be pleaded as they fall in the domain of “material particulars”. However, to test the election of the returned candidate on the ground available under Section 100(1)(d)(iv) of the Act of 1951 qua the election manifesto, the petitioner was required to plead that the voters voted in favour of the respondent because of the election manifesto and but for the promises made in the election manifesto, the respondent would not have been elected and the result of the election was materially affected by the election manifesto being contrary to the constitutional provisions. However, it should not be understood as this Court has ruled that the petition averment should have 45 incorporated the very same sentence as stated above. However, in substance, there should have been a plea that the returned candidate was elected because the voters voted in his favour influenced by the election manifesto. Such plea is not found in the petition. It is relevant to bear in mind that the petition is not filed by the candidate who lost the election but is filed by a voter. No doubt, the voter is also competent to file an election petition however in the light of the law laid down by the Apex Court in Khanimonzhi supra, relating to pleading, the “material facts” in an election petition, this Court is of the view that this petition lacks “material facts” to attract Section 100(1)(d)(iv) of the Act of 1951 to try the election petition on the ground that it has materially affected the result of the election of the respondent. 41. The petitioner in his pleadings has contended that the election manifesto does not conform to Article 14 of the Constitution of India and the model code of conduct prescribed by Election Commission of India. However, what can be certainly noticed is that there is no pleading to the effect that because of the election manifesto being not inconformity with the constitutional provisions or the model code of conduct prescribed 46 by the Election Commission and because the respondent and his agents sought vote on account of freebies offered in the election manifesto, the voters were swayed away from other candidates and the voters voted in favour of the returned candidate being lured by the election manifesto. In the pleading, it is repeatedly averred that the promises in the election manifesto amounts to bribery and the campaign by the petitioner and the political leaders of the party supporting the respondent sought vote based on the guarantee and freebies promised in the election manifesto and guarantee cards. 42. This Court has to take this view as the Apex Court as already noticed supra, has concluded that election petition is a serious matter and it must conform to the requirement of Section 83 of the Act of 1951. 43. In the light of the aforementioned discussions, this Court is of the view that the “material facts” relating to the violation of Section 100(1)(d)(iv) of the Act of 1951 is lacking in the petition. When that is the case, no cause of action is made out under Section 100(1)(d)(iv) of the Act of 1951 though, the said 47 provision is pleaded/quoted in the petition. The law on this point is well settled. Mere quoting the provision does not amount to cause of action. The cause of action is bundle of essential facts based on which the party can approach the Court seeking the relief. 44. It is also noticed from the judgment of the Apex Court, while dealing with a petition under Order VII Rule 11 of the Code, the Court has to bear in mind whether the petition succeeds in case, the respondent does not appear and contest by traverse the pleadings. After going through the petition, this Court does not find any material facts to try the case whether the election of the respondent is materially affected by non-compliance of the Constitutional mandate in the election manifesto. 45. To hold that the pleading relating to violation of the Constitutional provisions, qua election manifesto and that by itself constitutes a ground to set-aside the election under Section 100(1)(d)(iv) of the Act of 1951 will render the expression “has been materially affected” in Section 100(1)(d) otiose. 48 46. From the language employed in Section 100(1)(d) of the Act of 1951, where the challenge to the election is on the premise that the manifesto is not in compliance with the provisions of the Constitution or model code of conduct prescribed by the Election Commission of India, one can conclude that the such election petition cannot be tried unless it is pleaded that the election manifesto has “materially affected” the outcome of the election with sufficient “material facts” relating to the effect of the election manifesto on the voters decision. For lack of “material facts” relating to the election result being “materially affected”, this Court has to hold that the cause of action is not made out in the petition to challenge the election on the ground of violation of Section 100(1)(d)(iv) of the Act of 1951. 47. It is also urged by the learned Senior counsel for the petitioner that the petition is also filed on the ground that the expenditure of the guarantee scheme is not reflected in the expenditure shown by the returned candidate. The contention relating to non compliance of filing the details of the expenditure is found in Paragraph No.75 of the petition which reads as under: 49 “75. In the instant case, the Respondent filed their returns brining it within the authorized expenditure. While doing so, he has not included the expenditure incurred for providing the Manifesto, guarantee cards, advertisement charges in various newspapers, expenses incurred for canvassing votes and the expenditure that is being incurred by the Government for implementing the Schemes. For implementing these schemes each gurantee exceeds more than Rs.20,00,00,000/- (Rupees Twenty Crores) of minimum amount and the expenditure is being incurred by the Government at the cost of the tax payers. If the candidate is taking advantage of the gurantee and if they are implementing at the cost of the Government, it not only amounts to offence U/s. 126 and also amounts to embezzlement of Government money on either account if the expenditure is beyond the limit and they have to be disqualified.” 48. It is noticed that the petitioner is contending that the expenditure made by the political party should be included in the expenditure of the candidate contesting the election representing the political party, no provision of law is pointed out to accept the said contention. It is also noticed that Rs.20,00,00,000/- which is said to be the probable expenditure to implement the guarantee 50 scheme and it is stated that if such scheme is implemented, it amounts to an offence under Section 126 of the Act of 1951. This Court has considered Section 126 of the Act of 1951 and same deals with the prohibition to hold public meetings 48 hours prior to the conclusion of the poll. This Court does not find any material facts in the petition to hold that a cause of action is made out under Section 126 r/w Section 100(1)(d)(iv) of the Act of 1951 to try the case on the premise that the election of returned candidate is materially affected. 49. Learned Senior counsel urged that the Election Commission of India pursuant to the direction issued by the Apex Court has framed Model Code of Conduct and the said Model Code of Conduct stipulates the compliance of Constitutional Scheme and as such, the challenge to the election has to be considered in the backdrop of the violation of the Model Code of Conduct as well and the same is one of the grounds raised in the petition and all these contentions require a trial and cannot be adjudicated in an application under Order VII Rule 11 of the Code. Section 100 of the Act of 1951 does not provide for setting aside the election on the premise that the Model Code of Conduct is violated. 51 50. This Court has considered the judgments relied on by the learned Senior counsel appearing for the petitioner in Ramesh Baghel, Ashwini Kumar Upadhyay and Bromley London Borough Council supra. Suffice it to stay the ratio in the aforementioned judgments do not apply to the present facts of the case as those judgments have been rendered in entirely different factual settings. 51. Hence the following: ORDER (a) The application under Order VII Rule 11 of the Code of Civil Procedure filed by the respondent is allowed. (b) Consequently, the election petition is rejected. (c) No order as to cost. Sd/- (ANANT RAMANATH HEGDE) JUDGE GVP/brn