JUDGMENT :

1. This election petition filed under Section 80 read with Section 100 (1) of the Representation of the People Act, 1951 (for short, ‘the said Act’) challenges the election of the respondent no.3 who has been declared as the returned candidate in the general elections from Nagpur Lok Sabha Constituency that were held in May 2019. According to the petitioner who was also a candidate at the said election, on account of non-compliance with various statutory provisions, the election of the returned candidate is liable to be declared as null and void.

2. The respondent no.3 has filed an application under the provisions of Order VII Rule 11 of the Code of Civil Procedure, 1908 (for short, ‘the Code’) seeking dismissal of the election petition on the ground that there is non-disclosure of any cause of action for seeking declaration as to the voidness of his election. It is also stated that there is absence of material facts being pleaded in the election petition to indicate that the result of the election was materially affected insofar as it concerned the returned candidate. According to the returned candidate, the allegations as made in the election petition are not supported by any material facts and therefore the requirement of provisions of Section 83(1)(a) of the said Act has not been satisfied. Accordingly the said application has been taken up for consideration.

3. Shri Sunil V. Manohar, learned Senior Advocate for the applicant-returned candidate submitted that the averments as made in the election petition were highly insufficient to proceed with the trial of the election petition. Referring to the pleadings in the election petition it was submitted that it could be gathered from the said pleadings that the petitioner sought to rely upon the provisions of Section 100(1)(d)(iv) of the said Act for the purposes of seeking a declaration that the election of the returned candidate was liable to be declared as void. Reference was made to the averments in paragraph 5 of the election petition wherein it was pleaded that out of 19,00,784 registered voters about 11,86,843 had exercised their franchise. The petitioner had polled 26,128 votes while the returned candidate polled 6,60,221 votes. The final tally of the votes did not match and there was a serious discrepancy in the grand total. There was a difference of 786 votes more than the votes polled. The difference between the polled votes and the votes counted was unexplained. The electronic voting machines could not be trusted. Attention was then invited to the averments in paragraph 11 of the election petition wherein reference was made to the Instructions issued to the Returning Officer vide Instruction no. 15.30(d). As the discrepancy was noted in the total votes polled and the votes counted, the Returning Officer ought to have sent a detailed report to the Election Commission. In para 18 it was pleaded that even according to the Election Commission one to two percent electronic voting machines were either defective or non-functional and if such defect went undetected, the same would affect about 36,000 votes. In paragraph 19 it has been pleaded that since there was non-compliance with the provisions of Constitution of India, the provisions of the said Act and the Rules made therein as well as the guidelines issued from time to time by the Election Commission, the election of the returned candidate was liable to be declared as null and void. On the basis of these pleadings in the election petition, it was stated by the learned Senior Advocate for the returned candidate that his election was sought to be declared as void under Section 100 (1) (d) of the said Act. His election could not be declared to be void unless it was shown that the result of the election insofar as it concerned the returned candidate had been materially affected by the non-compliance of the provisions of the Constitution of India or the statutory provisions as stipulated. Except for pleading that t