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2020 Supreme(MP) 382
IN THE HIGH COURT OF MADHYA PRADESH AT JABALPUR
B.K. SHRIVASTAVA, J.
Ram Kishan Patel – Petitioner
Versus
Devendra Singh and Another – Respondents
Election Petition No. 7 of 2019
Decided On : 13-07-2020
Advocate Appeared:
For the Petitioners: Shri Mrigendra Singh, Shri Navtej Singh Ruprah, Mrs. Nidhi Padam.
For the Respondent: Shri Sanjay K. Agrawal.
A petition filed under the Representation of People Act, 1951 is not liable to be dismissed under Order 7 Rule 11 of CPC read with Section 86 of the Act 1951 if it contains a concise statement of material facts, discloses a triable issue or cause of action, and is verified in the manner laid down in the Code of Civil Procedure, 1908.
Headnote:
The High Court dismissed the application filed by the respondent seeking dismissal of the election petition filed by the petitioner under Order 7 Rule 11 of CPC read with Section 86 of the Representation of People Act, 1951 (Act 1951). The Court held that the petition filed by the petitioner was not liable to be dismissed as it contained a concise statement of material facts, disclosed a triable issue or cause of action, and was verified in the manner laid down in the Code of Civil Procedure, 1908. The Court further held that the respondent's objections regarding the absence of an affidavit, false affidavit, or affidavit with blank space were not sufficient to dismiss the petition and that the petitioner had disclosed the source of information on the basis of which allegations were made in the petition.
Fact of the Case:
The petitioner, Ram Kishan Patel, filed an election petition challenging the election of the respondent, Devendra Singh, to the Legislative Assembly. The petitioner alleged that the respondent's nomination was invalid because the affidavit submitted by the respondent along with the nomination paper was not signed by the respondent and the respondent was not properly identified upon the affidavit. The respondent filed an application seeking dismissal of the election petition under Order 7 Rule 11 of CPC read with Section 86 of the Act 1951.
Finding of the Court:
The Court found that the petition filed by the petitioner was not liable to be dismissed as it contained a concise statement of material facts, disclosed a triable issue or cause of action, and was verified in the manner laid down in the Code of Civil Procedure, 1908. The Court further held that the respondent's objections regarding the absence of an affidavit, false affidavit, or affidavit with blank space were not sufficient to dismiss the petition and that the petitioner had disclosed the source of information on the basis of which allegations were made in the petition.
Issues: 1. Whether the petition filed by the petitioner was liable to be dismissed under Order 7 Rule 11 of CPC read with Section 86 of the Act 1951? 2. Whether the petition contained a concise statement of material facts and disclosed a triable issue or cause of action? 3. Whether the petition was verified in the manner laid down in the Code of Civil Procedure, 1908? 4. Whether the respondent's objections regarding the absence of an affidavit, false affidavit, or affidavit with blank space were sufficient to dismiss the petition? 5. Whether the petitioner had disclosed the source of information on the basis of which allegations were made in the petition?
Ratio Decidendi: 1. The Court held that the petition filed by the petitioner was not liable to be dismissed under Order 7 Rule 11 of CPC read with Section 86 of the Act 1951 as it contained a concise statement of material facts, disclosed a triable issue or cause of action, and was verified in the manner laid down in the Code of Civil Procedure, 1908. 2. The Court held that the petition contained a concise statement of material facts and disclosed a triable issue or cause of action as the petitioner had mentioned the entire details of his knowledge and the defects in the affidavit filed by the respondent. 3. The Court held that the petition was verified in the manner laid down in the Code of Civil Procedure, 1908 as the petitioner had signed every page of the petition and the Notary had affixed his seal with his signature on each and every page of the petition. 4. The Court held that the respondent's objections regarding the absence of an affidavit, false affidavit, or affidavit with blank space were not sufficient to dismiss the petition as the petitioner had disclosed the source of information on the basis of which allegations were made in the petition. 5. The Court held that the petitioner had disclosed the source of information on the basis of which allegations were made in the petition as the petitioner had stated that he got the knowledge of the fact upon perusal of the notice board where the respondent's nomination and affidavit were affixed.
Final Decision: The Court dismissed the application filed by the respondent seeking dismissal of the election petition filed by the petitioner.
ORDER :
1. This order shall govern the disposal of I.A. No. 8210 of 2019 filed by Respondent No. 1 Devendra Singh on 5.7.2019 under Order 7 Rule 11 of CPC read with Section 86 of “Representation of the People Act, 1951” (referred to as “Act 1951”) for dismissal of the Election Petition No. 07 of 2019 as not maintainable under section 86 of the Act, 1951 read with Order 7 Rule 11 of CPC.
2. Notification U/s 30 of R.P. Act, 1951 was issued by Election Commission on 02.11.2018 for Legislative Assembly election. Voting was held on 28.11.2018 and the result was declared on 11.12.2018. Respondent No. 1 Devendra Singh, Sponsored by the Indian National Congress Party, is the returned candidate (by margin of 8001 votes) for Constituency No. 140, Udaipura, District Raisen. Petitioner Ram Kishan Patel, sponsored by Bhartiya Janta Party, who was the looser in that election, filed main election petition under section 80/80-A of the Act, 1951 on 24.01.2019 mainly on the ground as contained in Section 100 (1) (d) (i) and (iv) of the Act, 1951.
3. As per the petitioner the election of respondent No. 1 is vitiated under section 100 (1) (d) (i) and (iv) of the Act, 1951 because the nomination submitted by the respondent no. 1 was not in accordance with the prescribed format as stipulated by the law as neither the affidavit which was submitted by the respondent no. 1 along with the nomination paper was signed by the respondent nor respondent no. 1 was properly identified upon the affidavit. The affidavit did not contain signature of the notary on the seal contained at all pages. Therefore, it would be deemed that no affidavit was filed along-with nomination papers by Respondent. Non-compliance of the mandatory provision of law entailed only rejection of the nomination form at threshold at the time of scrutiny of nomination as provided under section 36(2) of the Act, 1951. As per petitioner despite of categorical objection raised by the petitioner before the returning officer, the nomination of the respondent no. 1 was accepted. The petitioner also filed the copy of nomination (Ex.P.1), objection raised by the petitioner dated 12.11.2018 (Ex.P.2), reply dated 12.11.2018 filed by the respondent (Ex.P.3) and the order dated 13.11.2018 passed by the Returning Officer rejecting objection (Ex.P.4).
4. As per the petitioner, Section 33 (1) read with section 33(A) of the Act, 1951 and Rule 4-A of the “Conduct of Election Rules, 1961” make it clear that nomination paper which include the affidavit in Form 26 is to be completed in all respect. The law is very rigid in relation to the affidavit (Form 26) because the same touches the root of fundamental rights of voter i.e. right to know about the credentials of the candidate. The blank/unsigned/ unverified affidavit would leave the voter confused and the very object of disclosure stand defeated. Therefore, the affidavit filed by the respondent no. 1 ought to have been rejected because the defect of unsigned affidavit is definitely a defect of substantial character which cannot be marginalized. The reference of sections 8(1)(e) and 8(2) of Notaries Act, and Rule 8 and 11 of Chapter IV of “High Court of Madhya Pradesh, Rules, 2008” also given by the petitioner.
5. The respondent no. 1 served, then he filed the Interim Application No. 8210 of 2019 under Order 7 Rule 11 of CPC read with section 86 of Act, 1951, on 05.07.2019. It is submitted by the respondent no. 1, that petition filed by the petitioner is not maintainable under section 86 of the Representation of People Act read with Order 7 Rule 11 of CPC.
6. The Respondent No. 1 seeks dismissal of Election Petition upon the following grounds:-
“(a) The election petition does not contain a concise statement of material fact on which the petitioner relies and therefore does dot disclose a triable cause of action. The petition thus suffers from non-compliance of the provisions contained U/s 83(1)(b) of the Act, 1951.
(b) The election petition has not been verified in
