Hon’ble Krishna Murari, J.—The present election petition has been filed challenging the election of respondent No. 1 as Member of State Legislative Council (Local Authorities Constituencies) from Pilibhit-Shahjahanpur Local Authorities Constituency in Uttar Pradesh. The Election Commission issued a notification notifying the following programme :

Last Date for nomination ... 21.12.2009

Date for scrutiny of nomination ... 22.12.2009

Date for withdrawal of candidature ... 23/24.12.2009

Date for poll ... 7.1.2010

Date for counting of votes ... 13.1.2010

Date of declaration of result ... 13.1.2010

2. In pursuance of the aforesaid election programme, 7 candidates including the election petitioner filed their respective nominations. After the polling and counting as per the election programme, respondent No. 1 was declared elected on 13.1.2010 by the returning officer by a margin of 173 votes. The respondent No. 1 was shown to have received 1581 votes and the election petitioner 1408 votes.

3. The election petition is based on the allegation of illegalities and irregularities committed by the returning officer and his staff in the process of counting of polled votes by improper reception of void and invalid votes in favour of respondent No. 1 and improper rejection of valid votes of the petitioner, which materially affected the election. The grounds for challenge are referable to Section 100(1)(d) of the Representation of the People Act, 1951 (in short the ‘Act, 1951’). Reliefs prayed for in the election petition are as under :

“A. declare the election of respondent No. 1 as Member of the Legislative Council from Pilibhit - Shahjahanpur Local Authorities Constituency as null and void and set aside the same.

B. to declare the petitioner as duly elected Member of Legislative Council from Pilibhit-Shahjahanpur Local Authorities Constituency.

C. to issue order and direction for inspection and recount of rejected votes of the election in question.

D. pass any other order or direction which this Hon’ble Court may deem fit and proper in the facts of the case.”

4. Following issues were framed for consideration in the election petition vide order dated 15.7.2011 :

(1) Whether there was any improper rejection of valid votes cast in favour of the petitioner and whether the said rejection has materially affected the result of the election in-so-far as it concerns the respondent No. 1 (returned candidate)?

(2) Whether there was any improper reception of void votes and whether such reception has materially affected the result of the election in-so-far as it concerns the respondent No. 1 (returned candidate)?

(3) Whether the Election Petition does not disclose any cause of action?

(4) Whether the Election Petition is barred by Order VII, Rule 11 of the Code of Civil Procedure?

(5) To what relief, if any, is the petitioner entitled? “

5. Subsequently, respondent No. 1, the returned candidate made two applications; one under Order VI Rule 16 of the Code of Civil Procedure (in short the ‘Code’) read with Section 86(1) of the Act, 1951 and second misc. civil application under Order VII Rule 11 of the Code.

6. Hon’ble Judge nominated to hear the election petition released the same vide order dated 13.7.2012 and it came to be nominated to me by an order dated 31.7.2012 passed by Hon’ble the Chief Justice.

7. When the matter was taken up on 18.2.2013, learned counsel for the respective parties agreed that two issues namely, issue No. (3) and (4) may be decided as a preliminary issue and the aforesaid two applications shall be governed by the decision on the said two issues.

8. In view of the aforesaid, issue Nos. (3) and (4) were taken up as preliminary issue and hearing commenced on the said two issues alongwith application under Order VI Rule 16 and Order VII Rule 11 of the Code.

9. Heard Sri K.R.Singh, learned counsel for the election petitioner and Sri Umesh Chandra, learned Senior Advocate assisted by Sri Aseem