Rama Chandra Khuntia vs Ashok Kumar Das and Others

P.K. Misra, J.—Seeking substance from the decision of the Supreme Court reported in AIR 1996 SC 1691 : 1996 AIR SCW 1772)(Dr.(Smt.) Shipra, etc. etc. v. Shanti Lal Khotwal etc. etc.), respondent No. 1 in the election petition has filed this application u/s 86 of the Representation of the People Act, 1951 (hereinafter called the "Act") for dismissing the election petition on the ground that the affidavit in support of the allegations relating to corrupt practice is not in the proper form and the copies of such affidavit served on respondent No. 1 do not contain all the particulars.

Though the petitioner in the election petition has not filed a specific counter to the present application, a counter-affidavit has been filed in Misc. Case No. 67/96, wherein similar allegations had been made. In the said counter-affidavit, in paragraph 4, it has been stated :--

"4. ..... It is false to say that the copies of corrupt practice affidavit accompanying the election petitions served upon the respondent No. 1 did not contain copy of certification and endorsement of the competent authority before whom the affidavit was sworn. The concerned affidavit was sworn before the Notary Public and copy of the corrupt practice affidavit which accompanied the election petition, with due certificate and endorsement of the Notary Public as true copy was also attached to each one of the copy of the election petition filed along with the election petition for being served in duplicate on each one of the respondents. Copy of the relevant portions containing the certificate and endorsement of notary public as true copy and as served on the respondents are enclosed herewith as Annexure 1 and 2. It is mischievous that the respondent No. 1 has detached the said copy from the copy of the election petitions received by him and has come up with such a false allegation which is factually incorrect."

It is also contended that such a plea having not been raised in the written statement should not be allowed to be raised.

Since the present Misc. case was taken up for hearing along with Misc. Case No. 67/96, at the lime of hearing it has been specifically submitted by the counsel for the election petitioner that the averments made in the counter-affidavit in Misc. Case No. 67/96 may also be considered while deciding the present Misc. Case. From the averments made in the said counter-affidavit as well as from the submissions made by the learned Counsels at the lime of hearing of the present Misc. Case, it is apparent that dispute has arisen regarding the copies of affidavit served on respondent No. 1. In view of the provisions contained in Order 14, Rule 2, Code of Civil Procedure, since the question now raised appears to be a disputed question of fact and law, it would be appropriate to deal with the question, if otherwise available to be raised, along with other issues in the case in Dr. (Smt.) Shipra case (AIR 1996 SC 1691), there was no dispute regarding any fact and the question raised was a pre question of law. In the decision reported in Madhabananda Ray and Another Vs. Spencer and Company Ltd., it has been held that if the question of jurisdiction or bar under any law as contemplated under Order 14, Rule 2(a) and (b) of the CPC is a pure question of law then only such issue should be tried as a preliminary issue; but where the issue is a mixed question of fact and law, it should be tried along with other issues. In the decision reported in Bijoyshree Rout Roy Vs. Madhusudan Panigrahi and Others, , it has been held that the provisions contained in Order 14, Rule 2 are applicable to trial of election cases. Similar view has been expressed in order dated 1-11-1995 passed in Misc. Case No. 16 of 1995 arising out of E.P. No. 5 of 1995 (Rabindra Kumar Mallick v. Panchanan Kanungo). The decision reported in AIR 1996 SC 1691 (supra) along with other similar decisions have been considered by me in Misc. Case No. 13 of 1997, arising out of E. P. No. 17 of 1995 (Bhagabat Behera v. Sri Srikanta Misra and 11 others) which has been disposed of today and it is unnecessary to reiterate the reasons contained in the said order. Suffice it to say that for the reasons indicated in the said order delivered today, I decline to consider the petition at this stage leaving it open to respondent No. 1 to raise the question if it is otherwise permissible at the time of final hearing so that all the issues can be taken up together.

The Misc. Case is accordingly disposed of.