HIGH COURT OF JUDICATURE FOR RAJASTHAN

BENCH AT JAIPUR

S.B. Civil Miscellaneous Appeal No.1815/2021

Mustaq Ahmed Nazmi S/o Gulam Moinuddin, R/o Ward No. 28,

Dargahsharif Ke Paas Fatehpur Shekhawati Tehsil Fatehpur

District Sikar, Rajasthan.

----Appellant

Versus

Sama D/o Mustafa, R/o Ward No. 09, Vyapariyo Ka Mohalla,

Fatehpur Shekhawati District Sikar Rajasthan.

----Respondent

For Appellant(s)

:

Mr.Kapil Bardhar, Adv.

HON'BLE MR. JUSTICE ASHOK KUMAR GAUR

Order

22/02/2022

The present civil miscellaneous appeal has been filed by

the appellant challenging the order dated 04.08.2021, whereby

application filed by him under Order 7 Rule 11 CPC has been

dismissed.

Learned counsel for the appellant submitted that the

respondent has filed election petition against the present

appellant.

Learned counsel for the appellant submitted that the

election petition suffered from the following defects, which are

read as under:-

(i)

The Election Petition was not signed and verified as per

Rule 3(5)(c) of Rajasthan Municipalities Election Petition Rules,

2009 (for short ‘the Rules of 2009) for verification of pleadings.

(2 of 3)

[CMA-1815/2021]

(ii)

The Election Petition was bound to be dismissed as per

Rule 7(3) of the Rules of 2009, as the Election Petition did not

comply with the provisions of the Rules of 2009.

(iii)

The procedure prescribed under Rule 4(i) of the Rules

of 2009, was not followed as copies of the election petitions were

not served on each respondent and as such, in absence of such

supply of copy of election petition to each respondent, the Election

Petition was liable to be dismissed.

Learned counsel for the appellant submitted that the

Court below while deciding the application filed by the appellant

has wrongly observed that the defects in the Election Petition were

curable in nature and only on account of procedural irregularities,

the application filed under Order 7 Rule 11 could not have been

allowed.

I have heard the submission made by learned counsel

for the appellant and perused the material available on record.

The Court below, while passing the order dated

04.08.2021, has recorded a finding that the affidavit, which was

required to be filed by the respondent, has complied with the

requirement of verification of pleadings and reference has also

been made of a judgment passed by the Apex Court in the case of

Vidyawati Gupta & Ors. Vs. Bhakti Hari Nayak & Ors.

reported in [AIR 2006 SC 1194].

This Court finds that non-compliance of the affidavit, as

has been alleged by the appellant, is rightly found to be curable

defect by the Court below and as such, no error can be found in

such finding.

(3 of 3)

[CMA-1815/2021]

This Court, does not find any error in the impugned

order passed by the Court below and accordingly the present

appeal is dismissed.

(ASHOK KUMAR GAUR), J

Himanshu Soni/9