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KURIAN JOSEPH, A.M.KHANWILKAR
KULDEEP SINGH PATHANIA – Appellant
Versus
BIKRAM SINGH JARYAL – Respondent
What is the scope of Order 14 Rule 2(2) of the CPC compared to Order 7 Rule 11(a) of the CPC? What is the scope of enquiry under Order 7 Rule 11(a) of the CPC? What are the grounds for dismissing an election petition under the Representation of the People Act, 1951?
Key Points: - The scope of Order 14 Rule 2(2) of the CPC is wider than Order 7 Rule 11(a) of the CPC (!) . - The whole purpose of trial on a preliminary issue is to save time and money (!) . - Under Order 14 Rule 2(2), the court can look into the entire pleadings and materials available on record, to the extent not in dispute, to determine jurisdiction or a bar to the suit (!) (!) . - An enquiry under Order 7 Rule 11(a) is concerned with institutional defects and the court can only see whether the plaint or pleadings of the plaintiff constitute a cause of action (!) . - For an enquiry under Order 7 Rule 11(a), only the pleadings of the plaintiff-petitioner can be looked into, even if it is at the stage of trial of preliminary issues under Order 14 Rule 2(2) (!) . - The High Court committed a mistake by considering explanations offered in the replies filed by the respondents when dealing with an enquiry under Order 7 Rule 11(a) (!) . - The High Court erred by considering the correctness of allegations and evidence in support of averments at the stage of considering the maintainability of the election petition (!) . - The High Court exercised its jurisdiction only under Section 83(1)(a) of the Act read with Order 7 Rule 11(a) of the Code, and the scope of enquiry had to be limited to the pleadings of the plaintiff (!) . - The election petition disclosed a cause of action and it was not necessary to remit the petition for a fresh enquiry (!) . - The appeal was allowed, the impugned order was set aside, and the election petition was remitted to the High Court to try it on merits (!) .
JUDGMENT
KURIAN, J.:
1. Chapter III of Part VI of The Representation of the People Act, 1951 (hereinafter referred to as “the Act”) deals with trial of election petitions. Under Section 86(1) of the Act, “the High Court shall dismiss an election petition which does not comply with the provisions of Section 81 or Section 82 or Section 117”. Section 100 of the Act provides for grounds for declaring election to be void. Section 100(1)(d)(iii) of the Act provides that an election of a returned candidate can be declared to be void if the High Court is of the opinion that the result of the election, in so far as it concerns a returned candidate, has been materially affected by the improper reception, refusal or rejection of any vote or the reception of any vote which is void. Section 81 provides for institutional requirements including limitation and Section 117 provides for deposit of security for costs. Section 83, under Chapter II, deals with contents of an election petition. Under Section 83(1)(a) of the Act, “an election petition shall contain a concise statement of material facts on which the petitioner relies”. Under Order VII Rule 11(a) of the Code of Civil Procedure, 1908 (herei
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