Jyotin Waikhom vs Khumukcham Joykishan Singh

Heard Mr.H.S.Paonam, learned senior counsel for the petitioner who has filed the present Replication dated 13.10.220. Also heard Mr.N.Ibotombi,

learned senior counsel appearing for the respondent.

[2] In the present Replication dated 13.10.2020 the petitioner has stated at Para-4 as under:

“4. That with reference to para No.3 of the written statement, the answering petitioner deny the whole allegations made therein and begs to submit

that on 16.02.2017 during the scrutiny, the petitioner strongly objected to the Nomination paper along with Affidavit dated 10.02.2017 for rejection on

the grounds inter alia made in Sub-para No.i to iii of Para No.13 of the Election Petition No.8 of 2017 of the petitioner.

It is stated that the respondent No.1 had never filed/submitted the Nomination paper dated 13.02.2017 along with the Affidavit dated 13.02.2017

before the Returning Officer, 9-Thangmeiband Assembly Constituency as it is evident from the facts and records that the said nomination paper and

the affidavit dated 13.02.2017 were not affixed in a conspicuous place at the office of the Returning Officer nor uploaded/disseminated for information

of the electors. That as per Section 33 A Clause 3 of the Representation of the People Act, 1951 and also as per the instruction of the ECI dated

15.06.2009 vide official letter No.3/ER/2007/SDR and its continuation official letter dated 08.02.2011 vide official letter No.3/ER/2011/SDR, all the

affidavits and the nomination papers of the intending candidates are required to be uploaded/disseminated in the Official Website

www.ceomanipur.nic.in in the event the affidavit and the nomination papers are filed. However, in accordance with the relevant provision of the

Representation of the People Act, 1951, the Nomination Paper along with the Affidavit dated 10.02.2017 of the respondent No.1 was affixed in a

conspicuous place at the office of the Returning Officer for the information of the Electors as the same were filed. The affidavit dated 10.02.2017

was scrutinized on 16.02.2017 by the Returning Officer in presence of all the parties and after the scrutiny the same was accepted and

uploaded/disseminated in the official website, www.ceomanipur.nic.in said affidavit dated 10.02.2017 of the respondent No.1 is available in the official

website of the Election Commission of India affidavitarchive.nic.in. As such the question of submission of another Affidavit dated 13.02.2017 due to

the formal defect of the Affidavit dated 10.02.2017 as stated by the Respondent No.1 does not arise at all.

It is categorically stated that on 16.02.2017, the Nomination Paper and Affidavit dated 10.02.2017 was duly examined in accordance with section 36

of the Representation of the People Act, 1951, and was duly accepted by the Returning Officer. As such, it is crystal clear that the Nomination Paper

and Affidavit dated 13.02.2017 is fabricated and manufactured document in collusion with the Returning Officer only after the election petition is filed.

Further, the said Affidavit and the nomination papers were not in the record on the date of scrutiny as the same were never filed.â€​

Therefore, the petitioner prays for rejecting the Affidavit dated 13.02.2017 as not applicable.

[3] In the Written Objection filed by the respondent No.1 to the Replication dated 13.10.2020 it has been stated as under:

“1. That, before offering parawise reply to the contention made by the election Petitioner, the answering deponent craves leave of the Hon’ble

Court to place the fact situation of the case before the Hon’ble Court for better appreciation and for a just decision by the Hon’ble Court.

(i) That, the answering respondent No.1 begs to submit that the present replication is not presented with the leave of the Hon’ble Court as

required by law and as such the same is liable to be rejected with heavy cost.

(ii) That, the answering respondent No.1 begs to submit that the election petitioner has already filed MC (Election Petition) No.24 of 2017 praying for

allowing to file replication to bring the same plea and the same was rejected by the Hon’ble Court.

A true copy of the order is annexed hereto and marked as Annexure-X/1.

(iii) That, the answering respondent No.1 begs to submit that re-agitation may or may not be barred by res-judicata. But if the same issue is sought to

be re -agitated, it may amount to an abuse of the process of the Hon’ble Court, permitting the continuance of such a replication is tantamount to

licensing frivolous and vexatious litigation.

(iv) That, the answering respondent No.1 begs to submit that the repeated filing of replication, facts and other circumstances demonstrably shows

clear abuse of the process of Court, considering the conduct of the election petitioner, it is necessary to infuse the sense of responsibility in the mind of

the election petitioner by imposing a heavy cost.â€​

That, save and except those which are specifically or by necessary implication, or stated to be admitted in the pleading of the answering

Respondent No.1, the answering respondent No.1 denies all the allegations and averments made in the aforesaid replication.

That, with reference to para 4, the answering respondent No.1 humbly stated that the election petitioner through the guise of his replication is trying

to amend his election petition in order to bring on record new pleading and raise new grounds of challenge which were not mentioned or raised in his

Election Petition.

That, before proceeding the Election Petition No.8 of 2017 further, the maintainability of the replication petition be decided first.â€​

[4] Mr.H.S.Paonam, learned senior counsel for the petitioner submits that the respondent No.1 never filed/submi t the Nomination dated 13.02.2017

along with the Affidavit dated 13.02.2017 before the Returning Officer, 9-Thangmeiband Assembly Constituency inasmuch as the same was never

affixed in a conspicuous place at the office of the Returning Officer nor uploaded/disseminated for the information of the electors. He submits that as

per Section 33A Clause (3) of the Representation of People Act, 1951 and also as per instruction of the Election Commission of India dated

15.06.2009 as well as letter dated 8.2.2011 all affidavit and nomination papers of the intending candidates are required to be uploaded/disseminated in

the official website. It is also submitted that the affidavit of the Respondent No.1 dated 10.02.2017 was affixed in a conspicuous place at the office of

the Returning Officer for the information of electors. Thereafter, the affidavit dated 10.02.2017 was scrutinized on 16.02.2017 by the Returning

Officer and the same was accepted and uploaded/disseminated in the official website. Therefore, the question of submission of another affidavit dated

13.02.2017 due to formal defect on 10.02.2017 as stated by the respondent No.1 is not correct and the affidavit dated 13.02.2017 is a fabricated and

manufactured document in collusion with the Returning Officer only after the election petition was filed. Therefore, the affidavit dated 13.02.2017 be

rejected as not being admissible.

[5] Mr.N.Ibotombi, learned senior counsel on the other hand submits that filing of the replication dated 13.10.2020 is nothing but a bundle of new facts.

It is submitted that the grounds taken in the present Replication was already taken in the MC (El.Pet) No.24 of 2017 which was rejected by this Court

by order dated 01.09.2020 holding that the replication intended to be filed as per MC (El Pet) No.24 of 2017 is nothing but an abuse of the process of

Court which should have been averred in the Election Petition by the applicant/Election Petitioner. Therefore, allowing the applicant/Election Petitioner

to file Replication would amount to amending his pleading/improvi ng his pleading which would prejudice the case of the respondent No.1. He,

therefore places reliance in the cases of (1) K.K.Modi Vs K.N.Modi & Ors reported in (1998) 3 SCC 573, (2) Advocate General, State of Bihar Vs

M/s Madhya Pradesh Khair Industries & Anr reported in (1980) 3 SCC 311, (3) Udyami Evan Khadi Gramodyog Welfare Sanstha & Anr Vs State of

Uttar Pradesh & Ors reported in (2008) 1 SCC 560, (4) Tamil Nadu Electricity Board & Anr Vs N.Raju Reddiar & Anr reported in (1997) 9 SCC

736 and (5) Indian Council for Enviro-legal Action Vs Union of India & Ors reported in (2011) 8 SCC 161.

[6] This Court has considered the replication application dated 13.10.2020.

[7] The MC (El Pet) No.24 of 2017 is also re-considered by this Court while considering the present replication. The MC (El Pet) No.24 of 2017 was

filed under Order VIII Rule 9 of the CPC praying for leave to file subsequent pleadings to the written statement dated 11.09.2017.

[8] It is to be borne in mind that the MC (El Pet) No.24 of 2017 was filed on 10.10.2017. In the meantime, the petitioner again filed MC (El Pet)

No.24 of 2019 under Order VI Rule 17 read with Section 151 of the CPC praying for amendment of the MC (El Pet) No.24 of 2017. This Court by

order dated 5.8.2020 had allowed the petitioner to amend the MC (El Pet) No.24 of 2017 and, accordingly, a recast MC (El Pet) No.24 of 2017 was

filed on 7.8.2020. In the said Recast MC (El Pet) No.24 of 2017 it has been stated as under:

“3A(i) That, the Respondent No.1 had never submitted the Nomination Paper dated 13.02.2017 along with Affidavit sworn on 13.02.2017 before

the Returning Officer, 9-Thangmeiband Assembly Constituency as the said Nomination Paper and the Affidavit dated 13.02.2017 were not affixed in

a conspicuous place at the office of the Returning Officer for the information of the electors relating to the People Act, 2951 and also as per the

instruction of the ECI dated 15.06.2009. This facts are new to the Applicant which are required to be specifically replied by the Petitioner by filing a

Rejoinder/Replication.

3A.(ii) That, the Applicant begs to submit that the said Affidavit dated 13.02.2017 of the Respondent No.1 was not uploaded in the Official Website

www.ceomanipur.nic.in. However, in accordance with the relevant provision of the Representation of the People Act, 1951, the Nomination Paper

along with the Affidavit dated 10.02.2017 of the Respondent No.1 was affixed in a conspicuous place at the Office of the Returning Officer for the

information of the Electors. Such affidavit dated 10.02.2017 was accepted on 16.02.2017 by the Returning Officer after scrutiny and thereafter the

same was uploaded in the Official website www.ceomanipur.nic.in after contesting candidates are finalized. These facts are also required to bring on

records by filing a replication.â€​

[9] A comparison of the statements made in Para 3A(i) and Para 3A(ii) of the Recast MC (El Pet) No.24 of 2017 and Para-4 of the present

Replication dated 13.10.2020 would clearly project that the same grounds were considered by this Court while disposing the Recast MC (El Pet)

No.24 of 2017 and which was rejected by this Court vide order dated 01.09.2020. The grounds for rejection of the Recast MC (El Pet) No.24 of 2017

has been clearly enumerated by this Court in the order dated 1.9.2020. In the present case in hand, as already observed by this Court, that the present

Replication dated 13.10.2020 is nothing but a repetition and re-agitation of the grounds taken in Recast MC (El Pet) No.24 of 2017. In that view of the

matter, this replication petition is rejected.

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