RAMESH SHANKAR MORE Vs. RAMESH MATAPRASAD DUBE

JUDGEMENT

(1.) BY the present election petition the petitioner has prayed for a declaration that the election of the first respondent to the Vidhana Sabha Elections from the 41 Andheri Assembly Constituency held on 27th February 1990 is null and void and/or illegal on the ground that the first respondent and this agents and other persons with his consent have committed corrupt practice as defined under section 123 of the Representation of Peoples Act as well as for violation of the other provisions of the said Act. The petitioner has further prayed for a declaration that he has been duly elected in the said election. The said petition was filed on 16th April 1990. By my order passed on 7th June 1990 the petition was accepted and was made returnable on 23rd July 1990. The first respondent who is the returned candidate was served on 31st July 1990. On 28th August 1990, the first respondent appeared and applied for four weeks time to file the written statement and the same was granted. The first respondent filed his written statement dated 28th September 1990, on 1st October 1990. After all the respondents were duly served, the petition was placed on board for hearing on 8th October 1990. After the pleadings in the case were perused with the assistance of the learned Counsel appearing on behalf of the petitioner and the first respondent, by my order dated 10th October 1990 the issues in the case were settled. I further posted the petition for arguments on Issue Nos. 1 and 2 for being heard and decided today. The said issues are as under :-

(2.) SHRI Bhandari learned Counsel appearing on behalf of the petitioner has contended that the averments contained in para No. 3 (i) to 3 (viii) are irrelevant for the decision of the issues arising in the present petition. According to him, the save have been made in order t protract and/or delay the hearing of the petition. The same are unnecessary, irrelevant , firevolour and embarassing and are put forth for the purpose of confusing or protracting the trial. According to Shri Bhandari, the averments contained in the aforesaid paragraphs are liabole to be struck off under the provisions or Order VI, Rule 16 of the Code of Civil Procedure.

(3.) SHRI Bhandari further submitted that the avertments contained in paragraphs 3 (xix), 4, 5 and 6 are also liable to be struck off on the ground that the first respondent has not filed recrimination as provided under section 97 of the Representation of Peoples Act. The present petition contains a prayer not only for a declaration that the election of the first respondent be declared as null and void but a further declaration that the petitioner has been duly elected. Since the first respondent has failed to file recrimination he is debarred from claiming or leading evidence to prove that the elections of the petitioner would have been void if he had been the returned candidate. The first respondent in paragraphs 3 (xix), 4, 5 and 6 of the written statement has pleaded facts which seek to challenge the validity of the petitioners election on the ground inter alia that he is guilty of corrupt practices. Since section 97 of the Representation of Peoples Act bars the first respondent from leading evidence in this behalf the averments contained in the aforesaid paragraphs are liable to be struck off.