Dr. Om Prakash Dewangan vs Patiram Sahu and Others

N.K. Agrawal, J.—Instant revision is directed against the order dated 12.09.2011 passed by the District Judge, Raipur, in Election Petition No. 01/11, whereby and whereunder the applicant''s application filed under Order 7 Rule 11 of CPC has been dismissed. The facts in brief, shorn of details, and necessary for the disposal of this revision lie in a narrow compass. The respondent No. 1 filed an election petition under Sections 20, 21 and 22 of the Chhattisgarh Municipalities Act, 1961 (for short ''the Act, 1961") before the District Judge, Raipur, with a prayer to declare the election of applicant for the post of President, Municipal Council, Birgaon, as null and void.

The applicant/returned candidate filed his reply and evidence is being recorded in the case.

The applicant, by filing application under Order 7 Rule 11 of UHU sought rejection of election petition on the ground petition does not disclose cause of action.

The trial court, finding inter alia, the questions raised by the applicant are matter of evidence, dismissed the application. Hence this revision.

Dr. N.K. Shukla, learned Senior Counsel Shri Sudip Agrawal, appearing for the applicant vehemently argued: the election petition is filed mainly on ground of preparation of defective voter list. By placing reliance upon the judgments of Supreme Court in cases of Kabul Singh Vs. Kundan Singh and Others, , Shri Shreewant Kumar Choudhary Vs. Shri Baidyanath Panjiar, , Kunwar Nripendra Bahadur Singh Vs. Jai Ram Verma and Others, , Inderjit Barua and Others Vs. Election Commission of India, and Indrajit Barua and Others Vs. Election Commission of India and Others, , he would submit it is not open to the court while trying an election petition to go behind the electoral roll and enquire into the question whether inclusion of some persons in the electoral roll was legal. Dr. Shukla would further submit the allegations leveled in the election petition are as vague as it could be, inasmuch as, no material facts have been pleaded in the election petition to substantiate the same and so also the election petition is liable to be rejected at threshold. It was further submitted, the ground taken in the election petition regarding pendency of criminal case against the applicant u/s 409 of IPC is not correct, inasmuch as, the same has been denied by the applicant in para 30 of his written statement.

On the other hand, Shri Malay Kumar Bhaduri, learned counsel appearing for the respondent No. 1 would submit the petition, on the face, discloses the cause of action; evidence is being recorded and the matter is at final stage, and therefore, the court below has rightly rejected the applicant''s application.

I have heard the counsel appearing for the parties and perused the order impugned.

Under Order 7 Rule 11(a) of CPC, where plaint does not disclose cause of action then plaint is required to be rejected. Where it does not appear on the face of the plaint that there is no cause of action, the court will not reject the plaint. This is a clear distinction between a case where the plaint itself does not disclose any cause of action and a case in which the court after consideration of the entire material including oral and documentary evidence comes to the conclusion that there was no cause of action. In the later case the plaint cannot be rejected under Order 7 Rule 11(a) of CPC. It is also trite law, while considering the application under Order 7 Rule 11 of CPC, the court is not required to take into consideration the defence set up by the defendant in his written statement. What has to be seen is whether or not a meaningful reading of the plaint discloses a cause of action. The court should look at the plaint and documents accompanying the plaint, and not the defence of defendants or the documents relied upon by the defendant.

The Supreme Court in case of D. Ramachandran Vs. R.V. Janakiraman and Others, while disposing the preliminary objection under Order 7 Rule 11 of CPC raised in an election petition, observed in para 8 and 10 of its judgment as under:

We do not consider it necessary to refer in detail to any part of the reasoning in the judgment; instead, we proceed to consider the arguments advanced before us on the basis of the pleadings contained in the election petition. It is well settled that in all cases of preliminary objection, the test is to see whether any of the reliefs prayed for could be granted to the appellant if the averments made in the petition are proved to be true. For the purpose of considering a preliminary objection, the averments in the petition should be assumed to be true and the court has to find out whether those averments disclose a cause of action or a triable issue as such. The court cannot probe into the facts on the basis of the controversy raised in the counter.

On the other hand, Rule 11 of Order 7 enjoins the court to reject the plaint where it does not disclose a cause of action. There is no question of striking out any portion of the pleading under this Rule. The application filed by the first respondent in OA No. 36 of 1997 is on the footing that the averments in the election petition did not contain the material facts giving rise to a triable issue or disclosing a cause of action. Laying stress upon the provisions of Order 7 Rule 11(a), learned Senior Counsel for the first respondent took us through the entire election petition and submitted that the averments therein do not disclose a cause of action. On a reading of the petition, we do not find it possible to agree with him. The election petition as such does disclose a cause of action which if unrebutted could void the election and the provisions of Order 7 Rule 11(a) CPC cannot therefore be invoked in this case. There is no merit in the contention that some of the allegations are bereft of material facts and as such do not disclose a cause of action. It is elementary that under Order 7 Rule 11(a) CPC, the court cannot dissect the pleading into several parts and consider whether each one of them discloses a cause of action. Under the Rule, there cannot be a partial rejection of the plaint or petition. See Roop Lal Sathi v. Nachhattar Singh Gill 1. We are satisfied that the election petition in this case could not have been rejected in limine without a trial.

Now reverting to the facts of the present case, the election petitioner has not filed the election petition only on the ground of invalidity of the voter list, but has taken the grounds of suppression of material facts; applicant is facing criminal trial u/s 409 of IPC; has adopted unfair means (ground No. xvii) and the applicant has already been disqualified for the post of President, Municipal Council, Birgaon, Raipur.

Considering the facts of the present case in the light of judgment of Supreme Court in case of D. Ramchandran (Supra), in my considered opinion, the trial court has not committed any error in rejecting the applicant''s application filed under Order 7 Rule 11 of CPC for rejection of plaint.

For the reasons mentioned hereinabove, the applicant failed to point out any illegality or absurdity in the order impugned warranting interference of this court under its revisional jurisdiction. Accordingly, the revision fails and is accordingly dismissed. However, the trial court is directed to decide the matter expeditiously. No order as to costs.