NANA F.PATOLE Vs. NITIN GADKARI

JUDGEMENT

(1.) The election of the returned candidate-respondent no.1 in the general elections to the Lok Sabha from Constituency No.10-Nagpur has been challenged by the petitioners. The petitioner no.1 was a candidate of Indian National Congress Party from the said constituency. The election of the returned candidate has been challenged under the provisions of Section 100 (1) (b) read with Section 123(2), 100 (1) (d) (i), (ii) and (iv) of the Representation of the People Act, 1951 (for short, 'the Act of 1951'). It is also prayed that it be declared that the election of the returned candidate is null and void. Further relief that the petitioner no.1 be declared elected is also sought.

(2.) The returned candidate has moved Civil Application No.754/2020 (Exhibit 19) under the provisions of Order VI Rule 16 of the Code of Civil Procedure, 1908 (for short, the Code) for striking out the pleadings in the election petition which according to the returned candidate are unnecessary, vexatious, scandalous, frivolous and are intended to prejudice as well as delay the trial of the election petition. The returned candidate has also filed Civil Application No.11/2021 (Exhibit 20) under the provisions of Order VII Rule 11 of the Code read with Section 86 of the Act of 1951 seeking rejection of the election petition for want of cause of action. Civil Application No.549/2021 (Exhibit 26) has been filed by the returned candidate seeking permission to raise additional grounds in support of the application at Exhibit 20. Replies have been filed by the election petitioners opposing the civil applications and the same are at Exhibits 22, 23, 27 and 29.

(3.) These applications were heard at length. One of the contentions raised by the learned Senior Advocate for the returned candidate is that the affidavits that have been filed as required under Form 25 read with Rule 94-A of the Conduct of Elections Rules, 1961 (for short, the Rules of 1961) cannot be relied upon for the reason that the said affidavits alongwith its verification are defective. It is urged that according to the election petitioners the statements made in paragraph nos. 1 to 21 with annexures I to IX are true to the knowledge of the election petitioner nos.1 and 2. The very same statements in paragraph nos. 1 to 21 with annexures I to IX of the election petition are also stated to be true to the information of the election petitioner nos.1 and 2. This according to the learned Senior Advocate would not be in compliance with the requirements of a valid affidavit to an election petition as prescribed. In that regard reliance is sought to be placed on the decisions in R. P. Moidutty Vs. P. T. Kunju Mohammad and anr. (2000) 1 SCC 481, L.R.Shivaramagowda and ors. Vs. T.M.Chandrashekar (Dead) By LRs. and ors. (1991) 1 SCC 666, Regu Mahesh alias Regu Maheswar Rao Vs. Rajendra Pratap Bhanj Dev and anr. (2004) 1 SCC 46 and C. P. John Vs. Babu M. Palissery and ors. (2014) 10 SCC 547 to urge that the affidavits as filed under Form 25 do not deserve to be taken into consideration.