RAMNIWAS RAWAT Vs. MUKESH MALHOTRA

JUDGEMENT

(1.) Heard on I.A. No.2228/2025 and IA. No.2527/2025.

(2.) It is submitted by counsel for petitioner that the copy which was sent along with the notice is not in conformity with the provisions of Sec. 81(3) of Representation of People Act, 1951. The petition does not contain the impression of seal, name, affirmation and endorsement by the notary. To buttress his submission, learned counsel has relied upon judgment passed by Supreme Court in the case of Dr. (Smt.) Shipra etc. Vs. Shanti Lal Khoiwal etc. reported in AIR 1996 SC 1691. It is further submitted that Supreme Court by judgment passed in the case of Anil R. Deshmukh Vs. Onkar N. Wagh and others reported in AIR 1999 SC 732 has held that if notice did not contain endorsement of attestation and stamp of seal of the attesting officer and if true copies of affidavit containing endorsement of verification etc. is supplied at a later stage i.e. long before stage of argument, then defect in non-supply of true copy is curable. It is further submitted that thereafter both the judgments were considered by Constitutional Bench of Supreme Court in the case of T.M. Jacob Vs. C. Poulose and others reported in AIR 1999 SC 1359 and held that both the judgments are correct under the facts and circumstances of the respective cases. Thus, it is submitted that the copy of notice which was sent does not contain any impression of notarial act, therefore, the only consequence is the dismissal of Election Petition under Sec. 86 of Representation of People Act. Furthermore, it is submitted that later on, on 24/3/2025, the election petitioner has supplied a copy of election petition which was downloaded from the official website of the High Court "ERP". This notice also contains the endorsement made by the Judicial Registrar as well as the presenting officer which clearly means that the copy which was supplied on 24/3/2025 was not the true copy of the election petition which was presented on 30/12/2024 and accordingly, the said copy cannot cure the defect. It is further submitted that even otherwise, the corrected copy was supplied to the returned candidate only and no copy was supplied to any of the other contesting respondents. It is submitted that since the election petitioner has also sought that he be declared as successful candidate therefore all the contesting candidates are necessary party and are entitled to true copy of election petition, accordingly, relied upon the judgments of Supreme Court in the case of Smt. Sahodrabai Rai Vs. Ram Singh Aharwar and others reported in AIR 1968 SC 1079, M. Karunanidhi Vs. H.V. Handa and others reported in AIR 1983 SC 558 and Mulayam Singh Yadav Vs. Dharampal Yadav and others reported in AIR 2001 SC 2565.

(3.) It is submitted by counsel for respondent No.1 that no cause of action has arisen and accordingly the election petition is liable to be dismissed under Order VII Rule 11 CPC. Election Petition has been filed on solitary ground of suppression of criminal antecedents. It is submitted by counsel for respondent No.1 that Sec. 33 A of Representation of People Act requires that only those cases i.e. (i) where the trial is pending and charges have been framed (ii) where a person has been convicted for more than one year's RI are mandatorily required to be disclosed. However, in two cases the returned candidate was punished for less than one year, therefore, in the light of Sec. 33 A of Representation of People Act, non-disclosure would not invite the corrupt practice. So far as other two cases which are pending against the returned candidate are concerned, the same were disclosed in the affidavit. It is submitted that although in front of description of those two criminal cases, returned candidate had mentioned "ykxw ugha gksrk" but that declaration by itself would not mean that the respondent had suppressed the pendency of two criminal cases. It is further submitted that there is no averment in the election petition that non-disclosure or incorrect disclosure of criminal cases has materially affected the result of election. Furthermore the affidavit filed in support of corrupt practice is not in accordance with Form 25 prescribed under the Representation of People Act and the election petitioner has also not disclosed the source of information in his affidavit. To buttress his contention, counsel for returned candidate has relied upon the judgments passed by the Supreme Court in the case of C.P. John Vs. Babu M. Palissery and Others reported in AIR 2015 SC 16, Kanimozhi Karunanidhi Vs. A. Santhana Kumar & Others reported in [2023] 4 S.C.R. 798, Karikho Kri Vs. Nuney Tayang and another reported in [2024] 4 S.C.R. 394, Karim Uddin Barbhuiya Vs. Aminul Haque Laskar & Others reported in [2024] 4 S.C.R. 523, Ravi Namboothiri Vs. K.A. Baiju and others reported in AIROnline 2022 SC 883 and L.R. Shivaramagowda etc. Vs. T.M. Chandrashekar etc. reported in AIR 1999 SC 252. It is further submitted that material facts have not been pleaded and relied upon the judgments passed by the Supreme Court in the case of (2001) 8 SCC 233, Anil Vasudev Salgaonkar Vs. Naresh Kushali Shigaonkar reported in 2009 AIR SCW 6812 and Ravinder Singh Vs. Janmeja Singh and others reported in AIR 2000 SC 3026.