LexKULDEEP SINGH PATHANIA versus BIKRAM SINGH JARYAL
Open in Lexace · Ask the AI about this caseJudgment (excerpt)
[2017] 1 S.C.R. 915
KULDEEP SINGH PATHANIA
v.
BIKRAM SINGH JARYAL
(Civil Appeal No. 4080 of201!1)
JANUARY24, 2017
[KURIAN JOSEPH AND A. M. KHANWILKAR, JJ.)
The Represe111atio11 of the People Act, 1951 - ss.81, 83, 86(1)
and IOO(J)(d)(iii) - Appel/am lost election from State Legislative
Assembly :... Filed election petition mainly on grounds, uls.
IOO(l){d){iii) - Petition dismissed by High Court based on the
findings on preliminary issues thar the elecrion pelilio11 lacked in
material facts as required under s.83(1) of the Act and as such, did
not disclose any cause of action - 011 appeal, held: High Court
e;.,.ed in dealing with the violatio11s alleged by the petitio11er wirh
ri!/ere11ce to the replies furnished by the respo11de11t - It ventured
into a11 elaborate enquiry i11 the light of pleadings i11 the replies, to
see whether the resulr of the election was materially affected,
appare11tly or rather mistake11ly, u/Or. XIV. r.2, CPC - The issue
relared to an enquiry u!Or. VII, r. JI (a), CPC, a11d hence, there was
no question of a preliminary issue being tried under u!Or. XIV. r.2(2),
CPC - l.h1der Or. VII, r.11. the Cour/ has to take a decision looking
al the pleadi11gs of the plaintiff 011ly a11d 11ot 011 the rebu1tal made
by the defe11dant - Averme11ts in the electio11 petilion disclose a
cause of actio11, therefore, petition remitted to High Court to try it
011 meri.ts.
Code of Cfril Procedure, 1908:
Or. VII, r.11 a11d Or. XTV, r. 2(2) - Difference betwee11 trial of
preliminary issues u/Or. XIV. r.2(2) and e11quiry on preliminary issues
u/Or. VII, r. 11 (a) - Held: E11quiry u11der Or. VII, r. JI is only on
i11Slilutio11al defec{s - The Courr ca11 011ly see whether the plai111,
rather pleadi11gs of the plaintiff. constitute a cause of actio11 a11d
cannot co11sider the rebuua/ made by the defe11dant or any other
marerials produced by the defe11da11t - I11sofar as trial 011 pre/imi11ary
issues u!Or. XIV. r. 2(2) is co11cerned, rhough ii is 11ot a milli trial,
the Court ca11 and has lo look illto the ell/ire pleadi11gs a11d the
materials available 011 record, to the extent not in dispute.
915
A
B
c
D
E
F
G
H
916
A
B
c
D
E
F
SUPREME COURT REPORTS
[2017] I S.C.R.
Allowing the appeal, the Court
HELD: 1. The High Court dealt with the violations alleged
by the election petitioner so as to find out whether a cause of
action is made out, but committed a grave error by considering
the explanations offered in the replies filed by the respondents.
The High Court ventured into an elaborate enquiry in the light of
the pleadings in the replies, to see whether the result of the
election was materially affected, apparently or rather mistakenly,
under Order XIV Rule 2. [Para 5] (919-E-F]
2.1 Order XIV Rule 2 provides for disposal of a suit on a
preliminary issue and under sub-Rule (2) of Rule 2, if the court is
of opinion that a case or part thereof can be disposed of, on an
issue of law only, it may try that issue first, in case it relates to
jurisdiction of the court or bar to entertaining the suit. After the
1976 amendment, the scope of a preliminary issue under Order
XIV Rule 2(2) is limited only to two areas, viz. jurisdiction of the
court, and the bar to the suit as created by any law for the time
being in force. The whole purpose of trial on preliminary issue is
to save time and money. Though it is not a mini trial, the court
can and has to look into the entire pleadings and the materials
available on record, to the extent not in dispute. But that is not
the situation as far as the enquiry under Order VII Rule 11 is
concerned. That is only on institutional defects. The court can
only see whether the plaint, or rather the pleadings of the plaintiff,
constitute a cause of action. If a replication is filed after the stage
of written statement, the same also can be looked into to see
whether there is any admission on the part of the plaintiff. In
other words, under Order VII Ruic 11, the court has to take a
decision looking at the pleadings of the plaintiff only and not on
the rebuttal made by the dckndant or any other materials
produced by the defendant. [Para 61 [919-G-H; 920-A-C]
2.2 The High Court committed a mistake in the present
G
case, since four out of the six issues settled were taken as the
preliminary issues. 1\vo such issues actually were relatable only
to Order VII Ruic 11 of the Code, in the sense those issues
pertained toExcerpt shown. Read the full judgment & AI analysis in Lexace.