NAG RAJ PATODIA Vs. R K BIRLA

JUDGEMENT

(1.) BY means of Miscellaneous Application No. 57 Shri Bobde appearing for the respondent No. 2 Shri Radhey Shyam Morarka has raised an objection of a preliminary nature relating to the non-maintainability of the recrimination petition filed on behalf of Shri R. K. Birla -- Respondent No. 1 --the returned candidate. The case of the respondent No. 2 is that the additional declaration sought by the election petitioner that the respondent No. 2 was duly elected, could not have been claimed by him. According to him, such a declaration could be claimed by a candidate petitioner and not merely a voter petitioner. Since the petitioner could not in law, claim such a relief, the respondent No. 1 did not acquire any right to file the recrimination petition and as such, the recrimination petition is not maintainable in law. The respondent No. 2 further submits that the question is purely of law and does not need any additional evidence and goes to the root of the Jurisdiction of the Court to decide the recrimination petition. He prayed for raising and trying a preliminary issue to be framed as follows:---"is the recrimination petition maintainable?"

(2.) IT may be stated at the outset that the present stand of the respondent No. 2 is inconsistent with his stand originally taken in the case. In his written statement filed in reply to the election petition, the respondent No. 2 entirely supported the petitioner's case. In para 15 of his written statement the respondent No. 2 stated as follows:-

(3.) AS the question raised in the miscellaneous petition is purely one of law and as the learned counsel for the respondent No. 1 and the petitioner did not seriously dispute the right of the respondent No. 2 to raise such a purely legal controversy, the learned counsel for the parties were heard on the controversy.