Judgment

KASLIWAL, J.:- This appeal under Section 116-A of the Representation of the People Act, 1951 (in short "the Act") is directed against the judgment of the High Court of Madhya Pradesh dated 17th Feb,1986. Election of Legislative Assembly of the State of Madhya Pradesh was held in the month of February, 1985. One of the Constituencies was No. 14 Lahar (District Bhind).The nomination papers were filed before 6th February, 1985 and the scrutiny was done on 7th February, 1985. Several persons filed their nomination papers. The nomination paper of Ramprakash was rejected by the Returning Officer in the scrutiny. The order passed by the Returning Officer rejecting the nomination paper reads as under:

"Candidate is not identified as per electoral roll. His representative has accepted this mistake also. Hence rejected. Advised for correction but did not correct. The candidate did not correct after advising to correct mistake. Even did not appear at the time of scrutiny to correct mistake. Hence rejected. See Section 33(4) R.P.A."

Result of the election was declared on 5th March, 1985 and Shri Mathura Prasad appellant. declared elected.

2. Ajeem Khan one of the voters of the Constituency filed an election petition under See. 88 of the Act challenging the election of Mathura Prasad on several grounds but it is not necessary to state all the grounds as the controversy. in the present appeal centres round the wrongful rejection of the nomination paper of Ramprakash. The ground in this regard taken in the election petition was that the nomination paper of Ramprakash was wrongly rejected as the defect in his nomination paper was not of a substantial character. It was alleged that in the nomination paper filed by Ramprakash the Column meant for stating the candidates serial number in the electoral roll was left blank. It was thus alleged that the said defect was not of a substantial character and the nomination paper should not have been rejected in view of the provisions contained in Section 36(4) of the Act.

3. On the other hand the case of Mathura Prasad, the elected candidate was that neither Ramprakash nor any other person on his behalf was present before the Returning Officer when the nomination paper of Ramprakash was taken up for scrutiny. At the time of scrutiny, the Returning Officer had pointed out that voter number was not mentioned in the nomination paper and Jaiprakash (RW. 3) who was the proposer of Ramprakash had told the Returning Officer that he would Ramprakash regarding the above defect. The Returning Officer then put that nomination inform paper aside and took other nomination papers for scrutiny. Jaiprakash remained present in the hall awaiting the arrival of Ramprakash. The Returning Officer after scrutinising all the other nomination papers again called out the name of Ramprakash. As Ramprakash had not arrived till then, Jaiprakash left the hall after informing the Returning Officer that he would fetch Ramprakash. Jaiprakash left the place and went in search of Ramprakash but his efforts to search Ramprakash went in vain and he did not return back before the Returning Officer. In view of the above circumstances, the Returning Officer passed the order rejecting the nomination paper of Ramprakash under Sec. 33(4) of the Act.

4. On the pleadings of the parties learned single Judge of the High Court who tried the election petition framed Issue No. 1 in this regard which reads as under:

(i) Whether rejection of the nomination paper of Ramprakash by the Returning Officer was illegal, as alleged?

Both the parties lead evidence in support of their case. The petitioner in support of his case regarding the above issue examined himself, Mitthookhan, Gourishanker and Pahalwan. By the evidence of the aforementioned witnesses a story was put forward that shortly before the nomination paper of Ramprakash was taken up for scrutiny, Ramprakash had gone out for passing urine. He had left behind Mitthookhan as his representative and wh