C KRISHNA YADAV Vs. ALE NARENDRA

JUDGEMENT

(1.) The first respondent in Election Petition No. 15 of 1995 is the petitioner. The Election Petition was filed for ordering inspection, scrutiny and recount of the ballot papers polled during the election to 207 Himayatnagar Assembly Constituency held on December 1, 1994, and for other reliefs, mainly on the ground that the agents of the petitioner had no opportunity to watch the scrutiny of ballot papers and the counting process; that several ballot papers were accepted in favour of the first respondent which do not have the signature of the Presiding Officer, or otherwise wrongly counted, while several ballot papers were wrongly rejected from counting in favour of the petitioner either on the ground that the mark is not distinguishable or that the mark is overlapping or it was affixed partly only, in relevant column, noticed discrepancy in the total count of ballot papers including the postal ballots; no test check was conducted by the Returning Officer properly, several ballots which do not contain the signature of the Presiding Officer were counted in favour of the respondent in almost all the rounds, the objections raised by the counting agents were turned down by the Returning Officer unjustly and these and other irregularities materially affected the result of the election.

(2.) Pending the said Election Petition, the first respondent-returned candidate, filed this application objection to the maintainability of the election petition on the ground that none of the allegations made in the election petition discloses any cause of action, or triable issue under the Representation of the People Act, 1951 and as such, it is liable to be dismissed. The main objection of the petitioner in this application is that the averments in paras 5, 8 to 14, 16 to 24 are vague and they do not contain the necessary relevant particulars, they do not disclose any cause of action, much less a triable issue. Therefore, the election petition is liable to be rejected.

(3.) In the counter-affidavit filed by the first respondent election petitioner it is stated that the petitioner has entered appearance through his counsel in the month of April, 1995, sought for number of adjournments for filing written statement and ultimately the written statement was filed in the month of September, 1995. The petitioner has also filed the list of witnesses during the first week of November, 1995 and since then the matter was coming up for trial and when the first respondent was ready to proceed with his evidence, on 7-12-1995 the above application was filed raising the preliminary objection as to the maintainability of the election petition. As the written statement was already filed by the petitioner, the present application is intended only to delay and embarrass the fair trial of the election petition. Since pleadings are completed, list of witnesses are filed and as the election petition is posted for trial, the petitioner cannot take the preliminary objection as to the maintainability of the election petition at this stage and the proper course is only to go on with the trial of the main election petition. Even otherwise, the petition has no merits. All the relevant particulars in support of the contentions raised in the election petition are given and proper foundation of the claim was also laid, necessary material particulars were given in all the paras and they are specifically pleaded in the election petition. Therefore, it cannot be said that either the election petition does not constitute prima facie cause of action or does not raise a triable issue for adjudication and, therefore, the application is liable to be dismissed even on merits.