HAR NARAIN Vs. VINOD KUMAR

JUDGEMENT

(1.) The application A-59 has been made by the respondent under O.6, R.16 and S.151 C.P.C. praying that the paragraphs Nos. 10, 13, 15, 16, 20, 21, 22, 24, 25, 26, 27, and 31 to 34 be struck out as they do not contain material facts and do not disclose the cause of action and that the election petition be dismissed in entirety, as the petitioner could not be allowed to lead evidence on the allegations contained in the aforesaid paragraphs.

(2.) Sri Dwivedi, learned counsel for the petitioner raised a preliminary objection that this application is not maintainable, inasmuch as an application A-7 dated 7-10-1985 exactly with the same prayer had been made by the respondent under O.6, R.16, read with O.7, R.1 and Ss.82, 83 and 86 of the Representation of the People Act, 1951 (the Act, 1951). The said application was disposed of on 13-12-1985 and was partly allowed, as only para 18 of the election petition was ordered to be struck out. The contention of Sri Dwivedi is that the order dated 13-12-1985 operates as res judicata against the respondent. Same matter having already been decided between the same parties by this Court on 13-12-1985 under the application A-7 dated 7-10-1985. Sri Dwivedi argues that the contention of the respondent as raised in the application A-59 is barred by the rule of res judicata and the application A-59 which is nothing but a review application, though is not labelled under O.47, R.1 C.P.C. is not maintainable for two reasons :- (1) that it is barred by time; and, (2) that O.47, R.1 cannot be invoked in the election matters, because the Act, 1951 does not confer this power on the Court. The argument was that power of review is a part of substantive law in contradiction to procedural law and, therefore that cannot be exercised under S.87 of the Act, 1951, which simply provides that every election petition shall be tried by the High Court as nearly as may be, in accordance with the procedure applicable under the Civil P.C. to the trial of suits. I need not dilate on the issue whether the provisions of O.47, R.1 are applicable to this application, because Sri K.N. Tripathi, learned counsel for the respondent candidly states that O.47, R.1 refers to a power which is to be conferred specifically on a court by Statute and that the same cannot be exercised by virtue of the fact that the election petition is to be tried in accordance with the Civil P.C. Then the question is whether the application A-59 is maintainable under S.151, read with O.6, R.16.

(3.) The contention of Sri Tripathi is that the order dt. 13-12-1985 rejecting the application A-7 partly is erroneous, inasmuch as that runs counter to the decision of the Supreme Court in the case of Azhar Husain v. Rajiv Gandhi, 1986 All LJ 625 and that the same deserves to be recalled under S.151 C.P.C to prevent abuse of the process of the court. Sri Tripathi urges that the law laid down in the case of Azhar Husain (supra) by the Supreme Court could not be shown to the Court on 13-12-1985, as that was not within his knowledge at that stage and, therefore, the error arose in that order. Sri Tripathi elaborates that in the said case, the Supreme Court took the view that where the corrupt practice is alleged in the election petition, in the absence of material facts and particulars, the petition would not disclose the cause of action. So in view of the law laid down by the Supreme Court in that case Sri Tripathi contents that the material facts and particulars relating to corrupt practice as stated in the election petition having not been disclosed either in the grounds or in the paragraphs, mentioned in the application A-59, the election petition deserves to be dismissed under O.6, R.16, read with O.7, R.11 C.P.C. for not having contained the material facts and disclosed the cause of action. It is argued that when the petition does not disclose any cause of action, the Court has no option but to dismiss the election petition under O.7, R.11 C.P.C. and that if the order dt. 13-12-1985 is not recalled, then the prolonged trial of the election petition would amount to an abuse of process of the court.