SHYAM BIHARI PRASAD Vs. BIRENDRA PRASAD

JUDGEMENT

(1.) This is an order on the application filed on behalf of respondent No. 1 raising preliminary objection regarding the maintainability of election petition and reply thereto filed by the election petitioner.

(2.) The case of respondent No. 1 is that the copy of election petition which has been served on him is not true copy of election petition and pages concerning verification and affidavit have not been served on him and, therefore, the election petition is fit to be dismissed under Section 86(1) of the Representation of the Peoples Act, 1951 (hereinafter referred to as the Act) for non-compliance of Section 81(3) of the Act. The another objection of respondent No. 1 is that the 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 failed to furnish material facts and relevant particulars regarding these allegations and there is no contemporaneous document to support the baseless and imaginary allegations of commission of irregularities and illegalities in the counting of ballot papers and merely giving some figures regarding improper acceptance of some invalid ballot papers as valid ballot papers in favour of returned candidate cannot be said to be giving material facts and the entire election petition simply makes allegation for improper acceptance of invalid ballot papers but does not contain any material fact supporting these allegations and in this view of the matter the election petition is liable to be dismissed summarily under Order 7, Rule 11 of the Code of Civil Procedure (in short, CPC) read with Section 83 of the Act. According to respondent No. 1 he has already raised this objection in his written statement and this Court while framing issues has framed issue regarding maintainability of election petition and, therefore, this issue be decided first before proceeding further. Respondent No. 1 has prayed for dismissing the election petition on the ground of maintainability.

(3.) The petitioner in his reply to the petition of respondent No. 1 challenging the maintainability of election petition has stated that he had filed the election petition accompanying additional true copies of petition for service as the numbers of respondents (sic) and true copies for service to respondent No. 1 were returned unserved by the process server/postal peon with endorsement that respondent No. 1 refused to accept the same and respondent No. 1 appeared only after publication of notice in the newspaper and respondent No. 1 has not stated anywhere that from where he obtained the copy of election petition. Regarding objection of respondent No. 1 as to material facts the petitioner has stated that he has already given material facts showing irregularities committed in the counting of ballot papers and not only the figures of numbers of illegally counted ballot papers have been given but details of rounds of counting of ballot papers and booth numbers have also been mentioned in the petition and question of contemporaneous evidence raised by respondent No. 1 in this petition will come only when evidence will be recorded by the Court and absence of giving details of evidence in the petition cannot be a ground for dismissing the election petition under Order 7, Rule 11, CPC. The petitioner has prayed for rejecting the prayer of respondent No. 1 for dismissing the election petition at preliminary stage.