O R D E R

(13.07.2020)

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) & (iv) of the Act, 1951.

3. As per the petitioner the election of respondent No.1 is vitiated under section 100 (1) (d) (i) & (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 & 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 the