KANTI BUNDKI Vs. SINDHUSUTA PRADHAN

JUDGEMENT

(1.) In this writ petition, the petitioner has challenged the order dated 13.8.2012 passed by the learned Civil Judge (Junior Division), Bolangir in Election-Petition No. 3/2012 allowing the application filed by the opp. party No. 1 dated 16.7.2012 without affidavit and verification. The facts as narrated in the writ petition reveals that opp. party No. 1 (election petitioner) challenged the election of the present petitioner as Ward Member of Ward No. 7 of village Jaljadpali of Bandhapada Gram Panchayat under Puintala Block in the district of Bolangir, before the learned Civil Judge (Junior Division), Bolangir with a pleading of misconduct of the election officer in counting number of votes in favour of the petitioner and declaring her as elected Ward Member in respect of the aforesaid village. Accordingly, the application was registered as Election Petition No. 3 of 2012. She also prayed to call for the ballot papers in respect of Ward No. 7 of village Jaljadpali of Bandhapada Grama Panchayat for recounting and further to set aside the election of the petitioner as Ward Member of Ward No. 7. After receiving the notice, the present petitioner appeared and filed her show cause traversing the allegation made by the opp. party No. 1 taking a specific stand that the election petition is not filed in accordance with Section 33 of the Orissa Grama Panchayat Act (hereinafter referred to as the 'Act') and election petitioner has failed to plead material facts in support of her claim a well as due to improper verification, as such the said application is not maintainable. After receiving the copy of the show cause, the opp. party No. 1 filed an application stating that list of documents which was filed along with the election petition on 5.3.2012 was not verified as prescribed under Section 33(2) of the Act. Therefore, she filed a petition on 16.7.2012 before the Court below to treat the same as 'verification' which would be treated as part of the list of document by allowing the application. An objection was filed by the present petitioner to the said application of the opp. party No. 1 taking a specific stand that neither the application filed on 16.7.2012 was properly verified nor any affidavit was sworn to as required under the statute. However, without taking into consideration the objection raised by the petitioner, the application was allowed by the impugned order.

(2.) Learned counsel for the petitioner submitted that an election petition, being defective on various grounds, is liable to be rejected at the threshold, such as, absence of cause of action irredeemable vagueness and improper verification/affidavit etc. Since the defect is incurable, the application is liable to be rejected. However, the Court below without considering the gravity of the matter allowed the application and accepted the verification as a part of the list of documents. In support of his contention, he has cited a decision of the Hon'ble Apex Court reported in (Ishwardas Rohani v. Alok Mishra and others, 2012 7 SCC 309).

(3.) Learned counsel for the opp. party No. 1 submits that though opp. party No. 1 has filed list of documents on 5.3.2012 along with the election petition, however, it was not verified as per statutory provisions. Since the said defect is curable one, she has filed the application at a later stage with a prayer to accept the same as a part of the list of documents. In support of his contention, he has cited the decision reported in (Murka Radhey Shyam Ram Kumar v. Roop Singh Rathore and others, 1964 AIR(SC) 1545).