BHAGABAT BEHERA Vs. SITAKANTA MISRA

JUDGEMENT

(1.) This application has been filed by the respondent No. 1 to take up Issue No. 1 for preliminary hearing and to dismiss the election petition for non-compliance with the provisions of Sections 81 and 83 of the Representation of the People Act (hereinafter called, 'the Act') and Rule 94 of the Conduct of Elections Rules, 1961 (hereinafter called, 'the Rules').

(2.) In the election petition, the election of respondent No. 1 has been challenged inter alia on the ground that the respondent No. 1 has resorted to corrupt practice. After filing of written statement issues have been framed. Issue No. 1 framed by order dated 7-2-1996 relates to the question of maintainability of the election petition. The present application purporting to be one under Order 7, Rule 11 and Order 6, Rule 16 of the Code of Civil Procedure (hereinafter called, 'the Code') read with Sections 83 ad 86 of the Act and Rule 94A of the Rules has been filed on 3-3-1997 after evidence of a few witnesses had been recorded. In the present petition, it is mainly contended that the affidavit in support of the allegations relating to corrupt practice is not in accordance with Rule 94A and Form No. 25 prescribed thereunder. It has been asserted in the petition that though under Section 81(3) of the Act a true copy of the petition including the affidavit sworn under Rule 96A is to be served, the copy of affidavit served on respondent No. 1 does not bear the "name and designation" of the Notary and also it does not contain the endorsement made under the signature of the Notary which finds place in the original affidavit. It has been further asserted that the copy of the affidavit served on the respondent No. 1 not contain the same endorsement of the Notary about the affirmation before him". It is further contended that respondent No. 1 has not been served with a true copy of the petition which is in contravention of the provisions of the Act and Rules. It is further contended in the petition that the allegations of corrupt practice in the election petition are vague and general violating the mandatory provisions of Sections 81 and 83 of the Act and Rule 94A of the Rules. It is further claimed that in pages 25 and 26 of the election petition served upon the respondent No. 1 have not been signed by the election petitioner and further that the election petition has not been verified by any Advocate and the particulars of the Notary and Oath Commissioner before whom the affidavit had been sworn had not been stated in page 26 of the election petition. It has been submitted that in view of the aforesaid defects the election petition is liable to be preliminarily dismissed and Issue No. 1 should be taken up as preliminary issue for hearing under Section 86 of the Act.

(3.) In the counter affidavit, the assertions made in the application filed by respondent No. 1 have been refuted. The plea of respondent No. 1 has been characterised as belated, false and absurd. The maintainability of such an application, specially after the commencement of actual trial by way of recording of evidence has been questioned. The election petitioner has not admitted the assertion that copy of the affidavit served on the respondent No. 1 is not in compliance with the provision of Rule 94A read with Form No. 24. It has been stated that ". . .It is absolutely untrue to state that a true copy of the petition has not been served on the respondent No. 1...." It has been further asserted that even assuming that a true copy of the affidavit has not been served, the application filed at a belated stage should not be entertained since such a question has not been raised in the written statement and it must be taken that respondent No. 1 has not been prejudiced in any manner.