IMPORTANT POINT
Election petitions must disclose a cause of action; frivolous petitions are to be dismissed at the threshold.

ORDER :

(Rekha Borana, J.)

1. The matter has come upon an application under Order VII Rule 11 of Code of Civil Procedure, 1908 (CPC) as preferred on behalf of respondent No.1 for dismissal of the election petition.

2. The present election petition has been preferred by the petitioner with the following prayers :

“(i) That the nominations of respondent numbers 1 and 3 to 5 may kindly be rejected and the Assembly elections 2023 may kindly be declared void and respondent numbers 1 and 3 to 5 may be declared ineligible to contest elections for the next 6 years.

(ii) That the result dated 3.12.2023 and nomination of respondent number 1 may kindly be canceled and or election may be declared void and the petitioner may be declared elected for the post of MLA of Assembly Constituency 176 (Nathdwara) and declared elected for a period of 5 years from the date of declaration.

(iii) Any other order or direction, which this Hon’ble Court considers just and proper in the interest of justice. Cost of the election petition may kindly be granted.”

3. The ground raised in the election petition is that respondents No.1 & 3 to 5 had filed false affidavits in support of their nomination papers and further, concealed material information in the said affidavits which is in contravention to the specific guidelines as issued by the Hon’ble Apex Court in the case of Public Interest Foundation & Ors. Vs. Union of India & Anr.; 2019 (3) SCC 244 and further in Union of India Vs. Association of Democratic Reforms and Anr.; (2002) 5 SCC 294.

4. An application under Order VII Rule 11, CPC has been preferred on behalf of respondent No.1 with a specific averment that the election petition neither reflect any fact or ground in terms of Sections 100 & 101 of the Representation of the People Act, 1951 (hereinafter referred to as ‘the Act of 1951’) nor does it reflect any cause of action in compliance of Section 83 of the Act of 1951. It has been averred that the complete plaint/petition talks of wrong and incorrect particulars filed by respondent No.2 in her affidavit, who did not even contest the election. There is not a single averment of any wrong affidavit been filed by respondent No.1, who was the returned candidate hence, the averments made against respondent No.2 would be of no avail so far as respondent No.1 is concerned.

5. It has further been averred that even if the pleadings as made in the election petition are read as it is, the same does not reflect any cause of action so as to maintain the present election petition. The only averment made in the election petition is that there was a discrepancy in the particulars qua the income as furnished by respondent No.1 and respondent No.2 who are the husband and wife.

6. Learned Senior Counsel appearing for respondent No.1 submits that even if the particulars as furnished, are considered on the face of it, there is no discrepancy, whatsoever, in both the affidavits, as alleged by the petitioner. Further, even if any incorrect statement has been made in the affidavit of respondent No.2, she not being a candidate, any particulars furnished by her, cannot even be considered in the present election petition.

7. Raising the second ground, learned Senior Counsel submitted that the present election petition deserves to be dismissed even on the count of mis-joinder of parties.

As per Section 82 of the Act of 1951, if a petitioner prays for declaration that he himself or any other candidate be elected, all the contesting candidates are to be impleaded as parties to the election petition and where no such declaration is prayed for, the returned candidate is to be impleaded. In the present matter, respondent No.2 was neither a contesting candidate nor a returned candidate. Therefore, she ought not to have been impleaded in the present petition and the present petition deserves to be dismissed on the sole ground of mis-joinder of parties.

8. Learned Senior Counsel lastly submitted that firstly, there was no discrepancy in the affida