Hon’ble Dilip Gupta, J.—These two applications have been filed by the returned candidate under Order VII Rule 11 of the Code of Civil Procedure, 1908 (hereinafter referred to as the ‘CPC’) (A-7) for rejecting the Election Petition as it does not disclose any cause of action and under Order VI Rule 16, CPC read with Section 86(1) of ‘The Representation of the People Act, 1951’ (hereinafter referred to as the ‘Act’) (A-6) for striking out paragraphs 5 to 21 of the Election Petition.

2. The Election Petition has been filed by Smt. Louise Khurshid under Section 80/81 of the Act calling in question the election of Kuldeep Gangwar for the Vidhan Sabha No. 297, Kaimganj constituency in the State of Uttar Pradesh.

3. The petitioner Smt. Louise Khurshid and the respondent Kuldeep Gangwar, amongst others, had contested the said election which was held on 18th April, 2007. The re-poll was held on 10th May, 2007 on selected polling stations. The respondent was declared elected on 11th May, 2007 with a margin of 9,653 votes as the petitioner had secured 27,325 votes out of the total number of 1,27,126 votes polled, while the returned candidate had secured 36,978 votes.

4. Sri K.R. Singh, learned Counsel for the respondent returned candidate in support of the application filed under Order VII Rule 11, CPC pointed out that the election petition has been filed on grounds contained in Section 100(1)(d)(iii) & (iv) of the Act and Section 83(1)(a) of the Act requires that the election petition must contain a concise statement of material facts on which the petitioner relies. His contention is that in view of the said provisions it was incumbent upon the petitioner to not only state the material facts regarding the improper refusal or rejection/deletion of votes and about non-compliance of the provisions of the Constitution or the Act or of the Rules or Orders made under the Act but to also state material facts as to how the result of the election was materially affected, and since the said material facts have not been stated by the petitioner in the election petition, the same deserves to be rejected under Order VII Rule 11, CPC for not disclosing any cause of action.

5. Sri Satish Chaturvedi, learned Senior Counsel appearing for the petitioner, however, submitted that all the material facts have been stated in the petition and, therefore, the application deserves to be rejected and in support of his contention he has placed reliance upon the decisions of the Supreme Court in Virender Nath Gautam v. Satpal Singh and others, AIR 2007 SC 581 and Harkirat Singh v. Amrinder Singh, (2005) 13 SCC 511.

6. In order to appreciate the contentions advanced by the learned Counsel for the parties, it would be necessary to examine the relevant provisions of the Act and the averments made in the petition.

7. Section 80 of the Act provides that no election shall be called in question except by an election petition presented in accordance with the provisions of Part VI. Section 81 of the Act deals with the presentation of an election petition and it provides that an election petition calling in question any election may be presented on one or more of the grounds specified in sub-section (1) of Section 100 and Section 101 of the Act. Section 83(1)(a) of the Act provides that an election petition shall contain a concise statement of the material facts on which the petitioner relies. Section 86(1) of the Act provides that the High Court shall dismiss an election petition which does not comply with the provisions of Section 81 or Section 82 or Section 117 of the Act. Section 87 of the Act stipulates that subject to the provisions of the Act and of any rules made thereunder, every election shall be tried by the High Court, as nearly as may be, in accordance with the procedure applicable under the CPC to the trial of suits. Section 87 (2) of the Act provides that the provisions of the Indian Evidence Act, 1872 shall, subject to the provisions of the Act, be deemed t