The main legal point established in the judgment is that when new facts are pleaded in a replication, the court may grant the opposing party an opportunity to file a subsequent pleading/sur-rejoinder to address the new facts.

JUDGMENT :

Kh. Nobin Singh, J.

1. Heard Shri A. Bimol, learned Senior Advocate assisted by Shri S. Sasi, learned counsel appearing for the applicant/Respondent No. 1 and Shri S. Biswajit Meitei, learned Advocate appearing for Respondent No. 1/petitioner.

2. This is an application filed by the applicant/Respondent No. 1 under Order VIII Rule 9 read with Section 151 of CPC & Section 87 of Representation of the People Act, 1951 (hereinafter referred to as "the Act 1951") praying for grant of leave to allow him to file a subsequent pleadings/sur-rejoinder in answer to the replication filed by the Respondent No. 1/petitioner. The ground on which the instant application has been filed is that while going through the replication filed by the Respondent No. 1/petitioner, new facts are found to have been mentioned therein and the same are required to be controverted or clarified by him in the form of a subsequent pleadings/sur-rejoinder in answer to the replication of the Respondent No. 1/petitioner and in the event of the permission of leave not being granted, the allegations made in the replication shall cause prejudice to the applicant/Respondent No. 1.

3. An objection has been filed on behalf of the Respondent No. 1/petitioner stating that since the application has been filed only on 03/10/2018 after about 10 (ten) months from the date of filing the replication, the same is barred by delay and laches and that the application being MC - WP (C) No. 8 of 2018 wherein prayer has been made to strike out the pleadings in the replication on the ground that new material particulars have been pleaded therein, is still pending for consideration by this court. The instant application cannot be entertained on the ground of constructive res-judicata for the reason that the other aforesaid application is still pending and moreover, the applicant/Respondent No. 1 cannot take two stances in respect of one and the same cause of action. The fact that the instant application has been filed as an afterthought to achieve something which the applicant/Respondent No. 1 failed to obtain in the earlier application. The election petition being completely different from the writ petition, the occasion of filing sur-rejoinder does not arise in the election petition and the material particulars made by the Respondent No. 1/ petitioner in his replication are by way of response to the facts given in the written statement filed by the applicant/Respondent No. 1. Moreover, the present application has been filed with a view to delay the proceedings of the election petition as the applicant/Respondent No. 1 does not want to face the trial.

4. The short question that arises for consideration by this court is as to whether new facts have been pleaded by the respondent No. 1/petitioner in the replication and in order to decide the issue, it becomes necessary for this court to examine the averments made in the election petition and the replication. The election petition was filed by the respondent No. 1/petitioner challenging the election of the applicant/respondent No. 1 on the grounds that the nomination paper of the application/respondent No. 1 has been improperly accepted by the Returning Officer and that the applicant/respondent No. 1 has made false statement in his affidavit to the effect that he has no Government dues except in respect of motor vehicle advance. The materials facts made in the election petition as required under Section 83 of the Representation of People Act, are that firstly, the applicant/respondent No. 1 has failed to open a bank account at least one day prior to the date of filing the nomination for the reason that on the day nomination, the scrutiny of the applicant/respondent No. 1's nomination paper was deferred for some time and when his nomination was again considered, one of his agents brought a pass book of an account opened that day only. When the objection was raised by the agents of the respondent No. 1/petitioner with respect to the nomi