MD. NAFIS Vs. ELECTION COMMISSION OF INDIA

JUDGEMENT

(1.) The election of the returned candidate-respondent no.4 in the general elections to the Lok Sabha from Constituency No.10-Nagpur has been challenged by the petitioner who is a voter from the said constituency. The election has been challenged under the provisions of Section 100 (1) (b), 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 respondent no.5 be declared elected is also prayed for.

(2.) The returned candidate has moved Civil Application No.753/2020 (Exhibit 18) 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.12/2021 (Exhibit 19) 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. Replies have been filed by the election petitioner opposing the aforesaid civil applications. Both these applications are being decided by this common order.

(3.) In support of the applications filed under the provisions of Order VI Rule 16 and Order VII Rule 11 of the Code, the learned Senior Advocate for the returned candidate referred to the pleadings in the election petition. After doing so it was submitted that the averments in paragraph 7 as a whole did not disclose any triable issue being raised for adjudication. The election petitioner was in fact seeking answers to various questions posed in the said paragraph. Specific material facts that could constitute a cause of action to challenge the election of the returned candidate were conspicuously missing. It could be said that the election petitioner was seeking a roving enquiry into various aspects about the family affairs of the returned candidate. This was not permissible and unless the election petitioner came up with a specific case to indicate violation of any of the provisions of the Act of 1951, the pleadings in the election petition were unnecessary besides being scandalous, vexatious and amounted to abuse of the process of the Court. Even the assertions with regard to the income-tax returns of the returned candidate were without any substance as there was no assertion that in the affidavit filed along with the nomination form the information supplied was not in accordance with the income-tax returns filed by the returned candidate. Only on the basis of surmises and conjectures it was alleged by the election petitioner that the affidavit filed by the returned candidate was false. So was the case with regard to alleged income from the turmeric boiler regarding which vague allegations were made. A detailed reference to the grounds on which the deletion of the pleadings in the election petition has been prayed for would be made while dealing with the relevant paragraphs hereinafter. Suffice it to say that according to the learned Senior Advocate since no triable issue arose on the basis of the pleadings in the election petition, there was no reason to proceed further with the trial. The pleadings not giving rise to any cause of action were liable to be deleted and after that exercise if nothing was found to be further adjudicated, the election petition itself was liable to be summarily rejected under the provisions of Order VII Rule 11(a) of the Code. In support of his submissions the learned Senior Advocate placed reliance on the following decisions :