G SHANKAREGOWDA Vs. RATHAN SINGH

JUDGEMENT

(1.) in this election petition, the petitioner is questioning the election held to the 34th hospet assembly by-election. The petitioner and respondents-1 to 17 were contesting candidates for the said election held on 16-6-1991. Respondent 1 was declared as successful on 17-6-1991. The difference of votes cast between the petitioner and respondent 1 was only 433. The petitioner, however, alleges that, in reality, he has secured highest valid votes, but for various irregularities and corrupt practices committed by respondent 1 and his agents. According to the petitioner, the declaration of election of respondent 1 is liable to be set aside under Section 100(1)(b) read with Section 123(7); Section 100(1 )(b) read with sections 123(8) and 100(1)(d)(iv) of the representation of the People Act, 1951 (hereinafter referred to as 'the act'). Respondent 1 is the sole contesting party and he will be referred hereinafter as 'the respondent'. The respondent, after appearance, filed written statement on 2-12-1991. He also filed an application, ia. Iv, for rejecting the petition under Section 87 of the act read with order 7, Rule 11 of the C.P.C. on the ground that the petition did not disclose the cause of action. The petitioner has opposed this application.

(2.) one of the objections raised by Smt. Pramila m. Nesargi, learned counsel for the petitioner, is that I.A. No. Iv filed by the respondent is not maintainable as the election petition could be dismissed only under Section 87 of the act which empowers the high court to dismiss the petition if the petition does not comply with the Provisions of Section 81 or Section 82 or Section 117 of the act and that order 7, Rule 11 of C.P.C. cannot be invoked. Sri Rangavirtalachar, learned counsel for respondent 1, on the other hand, points out that a bench of three judges of the Supreme Court in the case of Hardwarilal v Kanwalsingh, AIR 1972 SC 515 has observed that an election petition can be dismissed for want of cause of action. The relevant observations are as follows:

(3.) it is next contended by Smt. Pramila m. Ncsargi, learned counsel for the petitioner, that the respondent cannot raise the question of maintainability of the petition after filing the written statement and that the filing of the written statement itself indicates that the respondent has understood the allegations made in the petition and that he has not been misled. But, the Supreme Court in the case of samar singh vkedalnath, AIR 1987 SC 1926 has observed that if a party raises objection to the maintainability of the petition, on the ground of absence of cause of action, after filing written statement, the preliminary objection cannot be ignored and that if the election petition does not disclose any cause of action, the respondent's right to raise objection to the maintainability of the petition, or the court's power to consider the objection, is not affected merely because the objection is raised after the filing of written statement or framing of issues. The respondent's counsel appeared before court on 22-11-1991 and the written statement was filed on 2-12-1991. La. No. Iv was filed by the respondent on 7-1-1992. In the first paragraph of the written statement, it is stated that the petition is liable to be rejected and that whatever that has been stated in subsequent paragraphs is without prejudice to this contention. At several places in the written statement, the respondent has averred that the allegations made in the petition are vague. Further, it is also the duty of the court to examine whether the petition is in conformity with Section 83 of the act in the interest of Justice as pointed out in the case of Dhartipakar v Rajiv Gandhi, AIR 1987 SC 1577. So, both the objections raised by the petitioner regarding the maintainability of I.A. No. Iv are rejected.