VIJAY KRISHNA Vs. NITISH KUMAR

JUDGEMENT

(1.) This is an order on the petition filed on behalf of respondent No. 1 raising preliminary objection regarding maintainability of election petition and rejoinder of election petitioner to this petition.

(2.) Respondent No. 1 in this petition under consideration has stated that the election petition is not maintainable and it is fit to be dismissed summarily under Section 86 of Representation of the People Act, 1951 (hereinafter referred to as the Act) for non-compliance of mandatory provisions of Sections 81, 82 and 117 of the Act. According to respondent No. 1 the copy of election petition filed and served by election petitioner on him is not in fact properly attested and signed and hence it is liable to be dismissed under Section 86(1) of the Act. Further objection of respondent No. 1 is that election petitioner in his election petition has made reckless and imaginary allegations of commission of irregularities and illegalities in the counting of ballot papers but he has totally failed to furnish material facts and relevant particulars regarding the said allegations and election petition does not show any cause of action and is fit to be dismissed under Order 7, Rule 11 of the Code of Civil Procedure (in short CPC) read with Section 83 of the Act. The further case of respondent No. 1 is that there is no contemporaneous document to support baseless and imaginary allegations of petitioner regarding commission of irregularities and illegalities in the counting of ballot papers and the entire election petition simply makes allegations of improper acceptance of invalid ballot papers but it does not contain any material fact to support this allegation. Respondent No. 1 has prayed for deciding the preliminary objection regarding maintainability of election petition which he has already raised in his written statement. Respondent No. 1 has prayed for dismissing the election petition after passing necessary order.

(3.) The election petitioner has filed rejoinder and has opposed the prayer of respondent No. 1 for dismissing the election petition. According to the election petitioner, respondent No. 1 has filed the petition under consideration with an ulterior motive to delay the trial of election petition. According to the election petitioner, the respondent No. 1 in his petition has not specifically stated that what material facts are wanting in the election petition and Section 83(1)(a) of the Act simply requires that election petitioner is to state the material facts in concise form and it nowhere requires that the election petition should also contain the details of evidence through which allegations made in the election petition are required to be proved. Further case of election petitioner is that pleading is required to be construed liberally and is to be read as a whole. About copy of election petition served on respondent No. 1 the case of election petitioner is that he has fully complied the provisions of Sections 81, 82 and 117 of the Act and he has attested every copy of election petition strictly in accordance with law. It has further been stated by the election petitioner that he has furnished all relevant material facts and particulars in his petition regarding the allegations of commission of irregularities in the counting of ballot papers and material facts concerning the allegation of miscounting of ballot papers can not be equated with the allegation of corrupt practice. Election Petitioner has prayed for dismissing the petition of respondent No. 1 raising preliminary objection regarding maintainability of election petition.