UDHAV SINGH versus MADHA V RAO SCLNDIA

Citation: [1976] 2 S.C.R. 246 · Decided: 10-10-1975 · Supreme Court of India · Bench: P.N. BHAGWATI · Disposal: Dismissed

Cited by 7 judgment(s) · cites 3 · see the full citation network in Lexace

Judgment (excerpt)

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UDHAV SINGH 
v. 
MADHA V RAO SClNDIA 
October 10, 1975 
[P. N. BHAGWATI AND R. S. SARKARIA, JJ.] 
Represe11tation of the Pedple Act. 1951-Sec. 82(b}, 86-123(2}, 123(i) 
& 123 (ii)-No11-joinder of candidate against whom allegation of corru,?t practice • 
is made whether fatal-Whether objection must be raised in written statement 
or whether can be taken by separate app/icatidn after the appellant's evidence 
is over-Whether non.compliance can be waived-C.P.C. Order 8 rule 2-
Distinction between inaterial facts and material particulars. 
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Six candidates fiied nomination papers for contesting the election to Lok 
Sabha from Guna Parliamentary Constituency in March. 1971. 
Pratap Sing~ 
and Gaya Prasad withdrew their candidature after their nomination paper> were 
found to be in order on scrutiny. The respondent herein was declared elected 
by a margin of' about 1,41,000 votes over his close rival Jadhav. The appel-
lant an elector of the Constituency filed an election petition challenging the 
election of the respond·ent on two grounds (I) The respondent incurred or 
authorised expenditure in excess of the limit prescribed, (2) The workers of 
the respondent including Pratap Singh, with his consent had threatened the 
electors with bodily injuries and criminal intimidation not to vote for Jadhav. 
The respondent filed his written statement and denied the charge, made 
by 
the appellant. Issues were framed and evidence of the appellant was recorded. 
Thereafter, the respondent submitted an application alleging that the appellant 
in his petition alleged the comn1ission of' a corn;pt practice within the meaning of 
s. 123 (2) of the Act by Shri Pratap Singh one of.th~ candidates but he failed 
to show him as a respondent and as such the petition was liable to be dismis-
sed under s. 86 on account of non-compliance with the mandate of s. 82(b). 
The appellant in his reply to the said application denied that any allegation was 
made against Shri Pratap Singh and f\!rther stated that the respondent did not 
raise this objection in his written statement and that he should not be allowed 
to rai~ it at a belated stage. The appellant also contended that since the objec. 
tion as to the non-joillder of the necessary party was not taken at the earliest, 
it should be deemed to have been waived by the respondent. 
The High Court found that the allegation against Shri Pratap Singh consti-
tuted a charge under s. 123(2) of the Act and that non-joinder of Shri Pratap 
Singh as a respondent was fatal to the petition. On merits also .. the High Court 
found against the appellant on both the i"5ues. 
On appeal it was contended by the appellant : 
1. In view of mandate of Order 8 Rule 2 of C.P.C. it was obligatory for 
the respondent to take all pleas of non-joinder in the written statement. 
2. In any case, the respondent should be deemed to have waived his rights. 
3. No allegations of corrupt practice were, in fact, made against Shri Pratap 
Singh, 
.. 
4. Assuming that there is an allegation again>t Shri Pratap Singh, the al-
' 
legation is so bereft of material facts and material particulars that it does not 
constitute a complete charge of corrupt practice under s. 123(2). 
On the either hand, the respondent contended; . 
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1. That it was not obligatory to take this objection in the written statement. 
It was a purely legal objection which for its deteminatfon did not require 
any fact> to be pleaded. 
The fatal defect is patentl on the face of the Election 
Petition. 
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• 
UDHAV SINGH V. M. R. SCINDIA 
247 
2. Order 8 Rule 2 is not attracted because that provision. as its marginal 
heading shows, enjoips the pleading of new facts only .as ~istinguished. ~rom 
pure points of' law. In the alternative, the 
said appllcat10n was add1ti~nal 
pleading which was accepted by the High Court. The appellant had sufficient 
opportunity to file his reply, to 
the said application and was not taken by 
surprise. 
3. Section 86 read withs. 82(b) are in th~ nature of a•mandate to _the C~urt 
which is bound to dismiss an election petition whenever it comes to Its notice, 
whether on its own motion or on the motion of the respondent, that there 
has been a non-compliance with the imperatiye of s. 82 (b). 
4. The respondent cannot by consent, express or tacit, waive these provisions. 
5. There was a charge of corrupt practice against Shri Pratap Singh. 
6. All primary facts. as distinguished from material particulars, are ne

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