Judgement

SINGH, J. :- This appeal under Section 116-A of the Representation of the People Act, 1951 is directed against the judgment of the High Court of Allahabad dated March 6, 1986 (reported in 1986 All LJ 1321) rejecting the appellants election petition under Order 7 Rule 11 of the Code of Civil Procedure.

2. Briefly the facts giving rise to this appeal are that during the General Elections held in the year 1984, the appellant filed his nomination paper for contesting election to the Lok Sabha from 79-Hapur Parliamentary Constituency. The appellants nomination paper was accepted and he was allotted symbol of "Lion". The appellant, Kedar Nath alias K. N. Singh Responent, and 17 other candidates contested the election. The appellant could poll only 617 votes while Kedar Nath respondent polled 255828 votes and he was declared elected. The appellant filed election petition challenging the Respondents election on a number of grounds. The respondent appeared before the High Court, filed written statement and contested the election petition. On 10-12-1985 issues were framed thereafter the respondent made an application for rejecting the election petition under Order 7 Rule 11 CPC on the ground that it disclosed no cause of action. A learned Single Judge of the High Court after hearing the parties at length rejected the election petition on the finding that the election petition did not disclose any cause of action. The appellant has challenged the correctness of the High Court order by means of this appeal.

3. The appellant who is an advocate appeared in person before us and argued his case at length. He made two submissions; firstly, he urged that under the Code of Civil Procedure the High Court had no jurisdiction to entertain any application under Order 7 Rule 11 of CPC after the settlement of issues. Once issues were framed on the pleadings of the parties the Court should have proceeded to record evience and decide the issues on the basis of evidence produced by the parties and the petition could not be rejected at that stage on the ground that it did not disclose any cause of action. In the alternative appellant urged that the election petition disclosed cause of action which could not be disposed of summarily without recording evidence. He referred to the pleadings raised in the election petition to show that the petitioner raised a specific ground that the appellants nomination paper had been accepted improperly by the Returning Officer which materially affected the result of election of the returned candidate. The second submission raised by the appellant was that the Returning Officer acted in violation of the proviso to Section 33(4) of the Representation of the People Act as he failed to correct entries in the appellants, nomination paper and list of contesting candidates with regard to the petitioners name, as a result of which, result of the election, was materially affected in so far as the returned candidate is concerned.

4. The question whether the High Court while trying an election petition has power to reject an election petition summarily under Order 7 Rule 11 of CPC is no longer res integra as this controversy has been set at rest by this Court in Azhar Hussain v. Rajiv Gandhi, AIR 1986 SC 1253, Bhagwati Prasad v. Rajiv Gandhi (1986) 4 SCC 78: (AIR 1986 SC 1534) and Dhartipakar Madan Lal Agarwal v. Rajiv Gandhi (1987) 3 JT 402 : (AIR 1987 SC 1577). In these cases, this Court after detailed consideration held that an election petition is liable to be rejected summarily at the threshold under Order 7 Rule 11 of the CPC. However, the appellant contended that once written statement was filed and after the court applied its mind to the pleadings, raised by the parties and framed issues, it should be presumed that triable issues had been raised in the election petition and therefore the Court could not thereafter summarily reject the petition under Order 7 Rule 11 of CPC. In substance the argument is that once issues