Introduction:

The case of Amol Dhondiba Khatal v. Vijay alias Balasaheb Bhausaheb Thorat (Application in Election Petition No. 162 of 2025 in Election Petition No. 02 of 2025; 2026 LiveLaw (Bom) 155) before the Bombay High Court deals with a critical aspect of election law—whether an election petition alleging suppression of material facts in a candidate’s affidavit can be dismissed at the threshold or must proceed to trial. The judgment, delivered by Justice Kishore C. Sant, reinforces the principle that where an election petition discloses triable issues supported by specific pleadings, it cannot be summarily rejected under procedural provisions.

The dispute arose from the Sangamner Assembly constituency election, where the petitioner, a defeated candidate, challenged the election of the returned candidate on the ground of alleged non-disclosure of material information in the mandatory Form 26 affidavit. The petitioner contended that the returned candidate had suppressed his association as a partner in a firm named “Nilkamal” and had failed to disclose liabilities, including tax dues, thereby misleading the electorate.

The returned candidate, in response, filed an application seeking rejection of the election petition under Order VII Rule 11 of the Code of Civil Procedure (CPC) read with Section 86 of the Representation of the People Act, 1951. The primary argument was that the petition did not disclose a cause of action and was liable to be dismissed at the threshold.

The High Court was thus called upon to determine whether the election petition contained sufficient material facts to warrant a full-fledged trial, or whether it could be rejected at the preliminary stage.

Arguments of the Applicant (Returned Candidate):

The returned candidate, who was the applicant seeking rejection of the election petition, advanced several arguments to demonstrate that the petition was liable to be dismissed at the threshold.

At the outset, it was contended that the election petition did not disclose a valid cause of action and failed to meet the strict pleading requirements under the Representation of the People Act, 1951. The applicant argued that election petitions must be drafted with precision and must contain all material facts necessary to establish the alleged grounds of challenge. In the absence of such particulars, the petition cannot be sustained.

The applicant further argued that the allegations regarding non-disclosure of partnership in the firm “Nilkamal” were baseless and misleading. It was submitted that the firm in question had already been dissolved prior to the filing of the nomination, and therefore, there was no obligation to disclose such association in the affidavit.

Similarly, the applicant contended that the allegations regarding non-disclosure of tax liabilities were vague and unsupported by concrete evidence. According to him, the petitioner had relied on incomplete or inaccurate information obtained from online sources, which could not form the basis of a serious allegation such as corrupt practice.

The applicant also emphasized that the petition failed to establish how the alleged non-disclosure materially affected the outcome of the election, which is a mandatory requirement under Section 100 of the Representation of the People Act. Without demonstrating such material effect, the petition, it was argued, could not be maintained.

Additionally, the applicant sought to invoke Order VII Rule 11 CPC, which empowers the court to reject a plaint (or petition) that does not disclose a cause of action. It was argued that allowing such a petition to proceed to trial would amount to unnecessary harassment and misuse of judicial process.

Arguments of the Respondent (Election Petitioner):

The election petitioner, on the other hand, strongly opposed the application for rejection and argued that the petition disclosed sufficient material facts to warrant a trial.

The petitioner contended that the returned candidate had deliberately suppressed material information in the Form 26 affidavit, which is a statutory requirement aimed at ensuring transparency in the electoral process. The non-disclosure of such information, it was argued, undermines the integrity of elections and misleads voters.

Specifically, the petitioner pointed out that the returned candidate had failed to disclose his association as a partner in the firm “Nilkamal.” This allegation was supported by documents obtained from the GST Department website, which indicated that the candidate was associated with the firm.

The petitioner further alleged that the candidate had declared “nil” government dues in the affidavit despite having outstanding tax liabilities. Such false declaration, according to the petitioner, amounted to suppression of material facts and could constitute a corrupt practice under the Representation of the People Act.

The petitioner also argued that the question of whether the firm had been dissolved, and whether the liabilities existed, were matters of evidence that could only be determined through trial. These issues, it was submitted, could not be adjudicated at the stage of deciding an application for rejection under Order VII Rule 11 CPC.

Importantly, the petitioner emphasized that the test at the threshold stage is whether the petition discloses a cause of action, not whether the allegations are ultimately proved. Since the petition contained specific averments supported by material, it could not be dismissed without a full trial.

The petitioner also relied on the principle that an election petition cannot be rejected in part. If any part of the petition discloses a triable issue, the entire petition must proceed to trial.

Judgment of the Bombay High Court:

The Bombay High Court, after considering the rival submissions, dismissed the application for rejection and held that the election petition must proceed to trial.

Justice Kishore C. Sant began by reiterating the legal position that an election petition can be rejected at the threshold only if it fails to disclose a cause of action or lacks material facts. However, where the petition contains specific allegations that require adjudication, it must be allowed to proceed.

The Court examined the pleadings in the present case and found that the petitioner had made specific averments regarding the suppression of partnership in the firm “Nilkamal” and the non-disclosure of tax liabilities. These allegations were supported by material obtained from the GST Department website.

The Court observed that such averments were sufficient to raise triable issues, particularly in the context of Section 100(1)(b) of the Representation of the People Act, which deals with improper acceptance of nomination.

Importantly, the Court held that the defence put forth by the returned candidate—such as the claim that the firm had been dissolved—could not be considered at the stage of deciding an application under Order VII Rule 11 CPC. Such issues, the Court noted, involve questions of fact and must be tested through evidence during trial.

The Court further observed that if the alleged liabilities had been disclosed in the nomination affidavit, it could have influenced the voters’ decision, thereby potentially affecting the outcome of the election. This observation underscored the materiality of the alleged non-disclosure.

While the Court did not find a prima facie case on certain allegations, such as undue influence under Section 101(b), it held that the presence of triable issues on other grounds was sufficient to sustain the petition.

The Court also reiterated the principle that a petition cannot be rejected in part. If any part of the petition discloses a triable issue, the entire petition must proceed.

In conclusion, the Court held that the election petition disclosed a cause of action and raised issues requiring adjudication. Accordingly, the application for rejection was dismissed, and the matter was directed to proceed for further consideration.