An election petition must comply with mandatory provisions of the Representation of the People Act, including the joinder of necessary parties, or it is liable to be dismissed.

JUDGMENT :

1. By the present election petition, the petitioner has challenged the election of respondent No.3 - Nitin Jairam Gadkari on the ground that the Bharatiya Janta Party (the BJP) and its workers have violated the Model Code of Conduct. It is alleged that respondent No.3 - Nitin Jairam Gadkari by using digital type machines circulated slips to the voters having photographs, name of respondent No.3 - Nitin Jairam Gadkari, and symbol of the BJP. It is further alleged that the machines were given to the representatives of all booths of Nagpur and the said slips were circulated to mislead voters and to get their valuable votes. Thus, respondent No.3 - Nitin Jairam Gadkari and the BJP committed violation of the Code of Conduct.

2. By this petition, the petitioner has prayed for declaration that the petitioner himself be declared as elected member under Section 83 of the Representation of the People Act, 1950 (hereinafter referred as the RP Act). The petitioner further prayed for cancellation and recall of the certificate of returned candidate respondent No.3 - Nitin Jairam Gadkari and also seeks declaration declaring the returned candidate elected as null and void.

3. After service of notice, respondent No.3 - Nitin Jairam Gadkari appeared and filed an application under Order VII Rule 11 of the CPC with Section 86 of the RP Act for rejection of election petition and also filed an application under Order VI Rule 16 of the CPC for striking out of pleadings. The application is filed by respondent No.3 - Nitin Jairam Gadkari for rejection of plaint on the ground that as the petitioner is seeking declaration that he be declared as elected, all the contesting candidates other than the petitioner are required to be joined as respondents to the election petition. It is settled position of law that the provisions of Section 82 of the RP Act are mandatory in nature. Section 86(1) of the RP Act provides that an election petition which does not comply with the provisions of Sections 81, 82 or 117 of the RP Act is required to be dismissed as election petition cannot be maintained seeking declaration of the petitioner being successful candidate in the absence of all contesting candidates being impleaded as respondents.

4. It is further contended that the petitioner has not pleaded the “material facts” as to the election has been materially affected. The “material facts” as to the violation of the Code of Conduct are not pleaded. The petition does not disclose any cause of action. No cause of action discloses as petition does not disclose violation of the Model Code of Conduct. It does not disclose whether violation is by the returning candidate or his election agent or with their authorization are concerned. The material facts such as who distributed the slips, at which place (specific place and time not mentioned). In absence of specific cause of action, election petition deserves to be dismissed. The “material fact” that the election has been materially affected have not been pleaded. The allegations are against party in general and not against returning candidate respondent No.3 - Nitin Jairam Gadkari. Vague pleading as to the violation of the Model Code of Conduct by the BJP and its workers is not sufficient and prayed for rejection of the plaint.

5. The petitioner also filed Civil Application No.163/2024 for amendment of the election petition seeking permission to add new respondents.

6. The applications filed by respondent No.3 - Nitin Jairam Gadkari under Order VII Rule 11(a) and under Order VI Rule 16 are opposed by the petitioner on the ground that the “material facts” are already pleaded which sufficiently show the violation of the Model Code of Conduct and, therefore, both the applications deserve to be rejected and the petitioner be allowed to amend the petition by adding the new respondents.

7. Heard learned Senior Counsel Shri S.V.Manohar for respondent No.3 - Nitin Jairam Gadkari. He submitted that when an election petitioner cla