TUKUNI SAHU Vs. SURENDRA SINGH BHOI

JUDGEMENT

(1.) THIS matter arises out of a Miscellaneous Application filed under Order 6, Rule 16 and Order 7, Rule 11 of the Code of Civil Procedure at the instance of the petitioner.

(2.) IN filing the aforesaid application, the return candidate -petitioner in the Miscellaneous Application has alleged that following the provisions contained in Representation of the People Act, 1951 (for short "the R.P. Act, 1951") at Section 83 read with Order 6, Rule 16 and Order 7 Rule 11 of the Code of Civil Procedure, a petitioner, in an election petition is required by law to state concise statement of material facts as prescribed under Section 83(1)(a) of R.P. Act, 1951. The petitioner in the Misc. Case claims that law is well settled that the omission of a single material fact leads to conclusion that the stated cause of action is incomplete and thus such petition can be said not to have disclosed full cause of action and as such election petition is liable to be dismissed under Order 7 rule 11(a) of the Code of Civil Procedure at the threshold and before filing of the written statement even. It is next contended by the petitioner in the present Misc. Case that from the reading of written statement together with the present Misc. Case, he has clearly demonstrated as to how and why allegations made in the election petition are liable to be struck down following the provisions contained under Order 6, Rule 16 of the Code of Civil Procedure read with Section 83 of the R.P. Act, 1951 and/or ignored. Thereby it claims that the election petition does not show any cause of action. The petitioner further contended that the allegations made in the election petition are in general and allegation in each of the paragraphs of paragraph 15(A) to 15(DG) i.e. total 113 numbers of paragraphs are entirely unnecessary, frivolous, vexatious, scandalous and thus hit by Order 6 Rule 16 of the Code of Civil Procedure. All those allegations are bereft of any material facts and detail material particulars further do not make out any cause of action and as such is hit by Section 83 of the R.P. Act, 1951 read with Order 6, Rule 16 of the Code of Civil Procedure. In establishing the allegations against the entire election petition, petitioner, the return candidate made out seven separate compartments which reads as follows:

(3.) PER contra, on service of the copy of the Misc. Case No. 107 of 2014, learned senior counsel appearing for the election petitioner -opposite party in the present Misc. Case submitted his objection to the Misc. Case inter alia contending therein that the Election Petition has been duly presented and the same is in conformity with the provisions contained under Sections 80 -A, 81, 82, 83 and 84 of the R.P. Act, 1951. In establishing his submission, the election petitioner submitted that the petitioner in the Election Case has not only furnished a concise statement of material facts in different paragraphs of the Election Petition especially in paragraphs 1 to 14 and paragraphs 15(A) to 15(DG) of the Election Petition but has also emphatically stated the material facts and particulars as to now there has been complete departure from the provisions laid down in the R.P. Act, 1951 and the conduct of the Election Rules as well as Orders made thereunder both at the time of conduct of poll and at the time of counting of votes. The opposite party further contended that the Election Petition not only pleaded material facts but has also categorically demonstrated the material facts, as required to be pleaded. Pleadings in the Election Petition are founded with the statutorily maintained documents and he has a case to be proved during course of trial of the Election Petition. In giving emphasis to the submissions made in paragraph -15(A) to paragraph -15(DG), opposite party i.e. the election petitioner contended that he has specifically pleaded all material facts which prima facie shows that there is irregularity in at least 87 numbers of booths which is in non -compliance of statutory provisions under the R.P. Act. He further claimed that the entire poll process is vitiated on account of non -observance of law or non -maintenance of the statutory forms in the manner required under law. In disputing to the claim of the return candidate that the election Petition does not make out a case of corrupt practice, the return candidate submitted that he has not only placed material facts but he has also statutory documents with him to prove the said allegations by adducing evidence both in oral and documentary in the trial of the Election Petition. Opposite party i.e. the election petitioner further alleged that the return candidate in essence is trying to delay the proceeding by taking recourse to filing of false and vexatious petition with untenable ground to strike out the pleadings as well as to dismiss the election Petition at the threshold. The Election Petitioner claimed that the petition under Order 6, rule 16 and under Order 7, Rule 11 of the Code of Civil procedure read with Sections 83 and 86 of the R.P. Act, 1951 is thoroughly misconceived both in law and facts and a desperate attempt by the sole respondent for creating a hindrance in the speedy disposal of the election petition. Relying on a decision of the Hon'ble Apex Court read with Section 87 of the R.P. Act, 1951, learned senior Counsel for the Election petitioner submitted that every election petition shall be tried by the High Court as nearly as may be in accordance with the procedure applicable under the Code of Civil Procedure in the matter of trial of the suit and the language "as nearly as may be" has received strict interpretation by the Hon'ble Apex Court in umpteen number of judgments contending that the Election Petition is in strict premises and requirement as provided under Sections 81, 82 and 83 of the R.P. Act, 1951. The Election Petitioner contended that the present Misc. case is being devoid of any merit and hence liable to be dismissed. On the premises of no ground made out for bringing the case under the fold of Order 6, Rule 16 and or Order 7, rule 11 of the code of Civil Procedure. In justifying his claim, during course of argument, Sri Acharya, learned senior counsel appearing for the Election Petitioner -opposite party in the present Misc. Case referred to different provisions of R.P. Act particularly giving reference to Sections 80 -A, 81, 83, 86, 98, 100, 123 therein and making reliance on the decisions reported in the cases of Murarka Radhey Shyam Ram Kumar v. Roop Singh Rathore, : (1964) 3 SCR 573, Kanak Vardhan Singhdeo v. Sri Bibekananda Meher, : AIR 1991 Orissa 231, F.A. SAPA AND OTHERS v. SINGORA AND OTHERS, : (1991) 3 Supreme Court Cases 375, H.D. REVANNA v. G. PUTTASWAMY GOWDA AND OTHERS, : (1999) 2 Supreme Court Cases 217, ANIL R. DESHMUKH v. ONKAR N. WAGH AND OTHERS, : (1999) 2 Supreme Court Cases 205, D. RAMACHANDRAN v. R.V. JANAKIRAMAN AND OTHERS, : (1999) 3 Supreme Court Cases 267, T.M. JACOB v. C. POULOSE AND OTHERS, : (1999) 4 Supreme Court Cases 274, MAHENDRA PAL v. RAMA DASS MALANGER AND OTHERS, : (2000) 1 Supreme Court Cases 261, T. PHUNGZATHANG v. HANGHANLIAN AND OTHERS,, (2001) 1 Supreme Court Cases 358, RAM PRASAD SHARMA v. MANI KUMAR SUBBA AND OTHERS, : (2003) 1 Supreme Court Cases 289, MAHADEORAO SUKHAJI SHIVANKAR v. RAMARATAN BAPU AND OTHERS, : (2004) 7 Supreme Court Cases 181, KAILASH v. NANHKU AND OTHERS, : (2005) 4 Supreme Court Cases 480, HARKIRAT SINGH v. AMRINDER SINGH, : (2005) 13 Supreme Court Cases 511, SATHI VIJAY KUMAR v. TOTA SINGH AND OTHERS, : (2006) 13 Supreme Court Cases 353, VIRENDER NATH GAUTAM v. SATPAL SINGH AND OTHERS, : (2007) 3 Supreme Court Cases 617, UMESH CHALLIYILL v. K.P. RAJENDRAN, : (2008) II Supreme Court Cases 740, K.K. RAMACHANDRAN MASTER v. M.V. SREYAMAKUMAR AND OTHERS, : (2010) 7 Supreme Court Cases 428, PONNALA LAKSHMAIAH v. KOMMURI PRATAP REDDY AND OTHERS, : (2012) 7 Supreme Court Cases 788, G.M. SIDDESHWAR v. PRASANNA KUMAR, : (2013) 4 Supreme Court Cases 776 and in the case of ASHRAF KOKKUR v. K.V. ABDUL KHADER AND OTHERS, : (2015) 1 Supreme Court Cases 129.