Tukuni Sahu vs Surendra Singh Bhoi

Biswanath Rath, J. - This matter arises out of a Miscellaneous Application 7 filed under Order 6, Rule 16 & Order 7, Rule 11 of the Code of Civil Procedure at the instance of the Petitioner.

In filing the aforesaid application, the return candidate-Petitioner in the Miscellaneous Application has alleged that following the provisions contained in Representation of the People Act, 1951 (for short "the R.P. Act, 1951") at Section 83 read with Order 6, Rule 16 & Order 7 Rule 11 of the Code of Civil Procedure, a Petitioner, in an election petition is required by law to state concise statement of material facts as prescribed under Section 83 (1)(a) of R.P. Act, 1951. The Petitioner in the Misc. Case claims that law is well settled that the omission of a single material fact leads to conclusion that the stated cause of action is incomplete & thus such petition can be said not to have disclosed full cause of action & as such election petition is liable to be dismissed under Order 7 rule 11(a) of the Code of Civil Procedure at the threshold & before filing of the written statement even. It is next contended by the Petitioner in the present Misc. Case that from the reading of written statement together with the present Misc. Case, he has clearly demonstrated as to how & why allegations made in the election petition are liable to be struck down following the provisions contained under Order 6, Rule 16 of the Code of Civil Procedure read with Section 83 of the R.P. Act, 1951 and/or ignored. Thereby it claims that the election petition does not show any cause of action. The Petitioner further contended that the allegations made in the election petition are in general & allegation in each of the paragraphs of paragraph 15(A) to 15(DG) i.e. total 113 numbers of paragraphs are entirely unnecessary, frivolous, vexatious, scandalous & thus hit by Order 6 Rule 16 of the Code of Civil Procedure. All those allegations are bereft of any material facts & detail material particulars further do not make out any cause of action & as such is hit by Section 83 of the R.P. Act, 1951 read with Order 6, Rule 16 of the Code of Civil Procedure. In establishing the allegations against the entire election petition, Petitioner, the return candidate made out seven separate compartments which reads as follows:

(a) Form 17C Part-1 has not been filled up properly;

(b) Figures mentioned in Form 17C Part-I are interpolated at places.

(c) Form 17C Part-I in some cases does not contain the BU & CU numbers of the EVM.

(d) BU & CU numbers mentioned in the Form 17C Part-I, are at some places interpolated;

(e) In respect of some booths Form 17C Part-I does not contain signature of the presiding Officers;

(f) In some cases voting/pooling figures in Form 17C Part-I do not tally with counting figure in Form 17C Part-II;

(g) Figures in voters turn out report & polling figure in Form 17C Part-I vis-a-vis Form 17C Part-II do not tally in some cases."

And in justifying such allegations, the Petitioner has prepared a chart in tabular form in exhibiting as to how each of the allegation in paragraphs 15(A) to paragraph-15(DE) of the Opposite Party, election Petitioner are false, unnecessary, frivolous, vexatious as well as scandalous & annexed the tabular statement as Annexure-A to the Misc. Case. In view of the above, the return candidate-present Petitioner submits that if the contents in paragraph-15(A) to paragraph-15(DE) are to be deleted, then the rest paragraphs such as paragraph-15 (DF) & Paragraph-15(DG) bears no substance & or semblance of truth which are also consequently be deleted.

During course of argument, Learned Counsel for the Petitioner by filing above Misc. case further submitted that under the provisions contained in R.P. Act, 1951, the election Petitioner-present Opposite Party was required to serve a true copy of the election petition following the provisions contained in Section 81(3) of the R.P. Act, 1951. Placing reliance on provisions contained in Section 81 read with Section 83 of the R.P. Act, 1951, Learned Counsel for the Petitioner contended that the copy of the election petition was served on the return candidate by way of notice is not in terms of mandatory requirements under Sections 81 & 83 of the R.P. Act, 1951. In making reference to Rule 94-A of the R.P. Act, 1951, Learned Counsel for the Petitioner in the present Misc. Case particularly referring to Form 25 alleged that there is no indication of corrupt practise & as such the affidavit is not in terms of the requirement of law & the affidavit not being in terms of law, Form 25-A cannot be taken as a part of the Election Petition & on taking it out from the election Petition, the petition cannot be treated to be an Election Petition. Thus, the Petitioner alleged that the Election Petition ought to be rejected under the provisions of Order 7, Rule 11 of the Code of Civil procedure. During course of argument, Learned Counsel for the return candidate-present Petitioner referred to the decisions enunciated in the cases of Azhar Hussain v. Rajiov Gandhi, 1986 (Supp) Supreme Court Cases 315, Anil Vasudev Salgaonkar v. Naresh Kushali Shigaonkar, (2009) 9 Supreme Court Cases 310, Ram Sukh v. Dinesh Aggarwal, (2009) 10 Supreme Court Cases 541, Mulayam Singh Yadav v. Dharam Pal Yadav & Ors, (2001) 7 Supreme Court Cases 98, Ravinder Singh v. Janmeja Singh & Ors, (2000) 8 Supreme Court Cases 191, C.P.John v. Babu M.Palissery & Ors., (2014) II CLR (SC) 839 & In The Case Of Jitu Patnaik v. Sanatan Mohakud & Ors, (2012) 4 Supreme Court Cases 194. Apart from the submissions & grounds made herein above, the returned candidate also challenged the maintainability of the Election Petition on the ground as follows:

"The copy served upon the sole Respondent does not bear date & affirmation before the Oath Commissioner or Notary or Magistrate of First Class."

"In the true copy of the election petition served upon this sole Respondent both the Affidavits do not disclose nor contain as to whether any of the affidavits have been affirmed on oath before either the Oath Commissioner or Notary or Magistrate of First Class."

In support of his contentions, the returned candidate placed reliance on the decisions rendered in the case of Mithilesh Kumar Pandey v. Baidyanath Yadav & Ors, AIR 1984 Supreme Court 305, Purushottam v. Returning Officer, Amravati & others, AIR 1992 Bombay 227, Dr Shipra (Smt) & Ors v. Shantilal Khoiwal & Ors, (1996) 5 Supreme Court Cases 181, Boota Singh v. Sher Singh &others, AIR 1994 P&H 32, N.V.Narasimha Rao v. Somepalli Sambaiah & others, AIR 1999 Andhra Pradesh 398, Ravinder Singh v. Janmeja Singh & Ors, (2000) 8 Supreme Court Cases 191, V.Narayanaswamy v. C.P.Thiruna Vukkarasu, (2000) 2 Supreme Court Cases 294, Mylayam Singh Yadav v. Dharam Pal Yadav & Ors, (2001) 7 Supreme Court Cases 98, C.P.John v. Babu M.Palissery & Ors, 2014 (II) CLR (SC) 839. The other limb of submission of the Petitioner is as follows:

"Following provision as contained in Section 83 (I) (C) of R.P. Act, the election petition shall contain a concise statement of material facts on which the election Petitioner relies."

"Following provision of Section 83(1) (c) in case of allegation of corrupt practise, the petition shall also be accompanied by an affidavit in prescribed form in support of allegations of such corrupt practise."

"Following the format prescribed under Rule-94-A of Conduct of Election Rules, 1961, an affidavit referred to in proviso to sub-Section 1 of Section 83 shall be sworn before a Magistrate of First Class or a Notary or a Commissioner of oaths & shall be in Form-25."

In the above premises, Learned senior Counsel for the Petitioner i.e. the returned candidate submitted that for violation in the above three aspects the election petition is incomplete & not maintainable in the eye of law.

Per contra, on service of the copy of the Misc. Case No.107 of 2014, Learned senior Counsel appearing for the election Petitioner-Opp. Party in the present Misc. Case submitted his objection to the Misc. Case inter alia contending therein that the Election Petition has been duly presented & the same is in conformity with the provisions contained under Sections 80-A, 81,82, 83 & 84 of the R.P. Act, 1951. In establishing his submission, the election Petitioner submitted that the Petitioner in the Election Case has not only furnished a concise statement of material facts in different paragraphs of the Election Petition especially in paragraphs 1 to 14 & paragraphs 15(A) to 15(DG) of the Election Petition but has also emphatically stated the material facts & particulars as to now there has been complete departure from the provisions laid down in the R.P. Act, 1951 & the conduct of the Election Rules as well as Orders made thereunder both at the time of conduct of poll & at the time of counting of votes. The Opposite Party further contended that the Election Petition not only pleaded material facts but has also categorically demonstrated the material facts, as required to be pleaded. Pleadings in the Election Petition are founded with the statutorily maintained documents & he has a case to be proved during course of trial of the Election Petition. In giving emphasis to the submissions made in paragraph-15(A) to paragraph-15(DG), Opposite Party i.e. the election Petitioner contended that he has specifically pleaded all material facts which prima facie shows that there is irregularity in at least 87 numbers of booths which is in non-compliance of statutory provisions under the R.P. Act. He further claimed that the entire poll process is vitiated on account of non-observance of law or non-maintenance of the statutory forms in the manner required under law. In disputing to the claim of the return candidate that the election Petition does not make out a case of corrupt practise, the return candidate submitted that he has not only placed material facts but he has also statutory documents with him to prove the said allegations by adducing evidence both in oral & documentary in the trial of the Election Petition. Opposite Party i.e. the election Petitioner further alleged that the return candidate in essence is trying to delay the proceeding by taking recourse to filing of false & vexatious petition with untenable ground to strike out the pleadings as well as to dismiss the election Petition at the threshold. The Election Petitioner claimed that the petition under Order 6, rule 16 & under Order 7, Rule 11 of the Code of Civil procedure read with Sections 83 & 86 of the R.P. Act, 1951 is thoroughly misconceived both in law & facts & a desperate attempt by the sole Respondent for creating a hindrance in the speedy disposal of the election petition. Relying on a decision of the Hon''ble Apex Court read with Section 87 of the R.P. Act, 1951, Learned senior Counsel for the Election Petitioner submitted that every election petition shall be tried by the High Court as nearly as may be in accordance with the procedure applicable under the Code of Civil Procedure in the matter of trial of the suit & the language "as nearly as may be" has received strict interpretation by the Hon''ble Apex Court in umpteen number of Judgments contending that the Election Petition is in strict premises & requirement as provided under Sections 81, 82 & 83 of the R.P. Act, 1951. The Election Petitioner contended that the present Misc. case is being devoid of any merit & hence liable to be dismissed. On the premises of no ground made out for bringing the case under the fold of Order 6, Rule 16 & or Order 7, rule 11 of the code of Civil Procedure. In justifying his claim, during course of argument, Sri Acharya, Learned senior Counsel appearing for the Election Petitioner-Opp. Party in the present Misc. Case referred to different provisions of R.P.Act particularly giving reference to Sections 80-A, 81, 83, 86, 98, 100, 123 therein & making reliance on the decisions reported in the cases of Murarka Radhey Shyam Ram Kumar v. Roop Singh Rathore, (1964) 3 SCR 573, Kanak Vardhan Singhdeo v. Sri Bibekananda Meher, AIR 1991 Orissa 231, F.A.Sapa & Others v. Singora & Others, (1991) 3 Supreme Court Cases 375, H.D.Revanna v. G.Puttaswamy Gowda & Others, (1999) 2 Supreme Court Cases 217, Anil R.Deshmukh v. Onkar N.Wagh & Ors, (1999) 2 Supreme Court Cases 205, D. Ramachandran v. R.V.Janakiraman & Ors, (1999) 3 Supreme Court Cases 267, T.M.Jacob v. C.Poulose & Ors, (1999) 4 Supreme Court Cases 274, Mahendra Pal v. Rama Dass Malanger & Ors, (2000) 1 Supreme Court Cases 261, T. Phungzathang v. Hanghanlian & Ors, (2001) 8 Supreme Court Cases 358, Ram Prasad Sharma v. Mani Kumar Subba & Ors, (2003) 1 Supreme Court Cases 289, Mahadeorao Sukhaji Shivankar v. Ramaratan Bapu & Ors, (2004) 7 Supreme Court Cases 181, Kailash v. Nanhku & Ors, (2005) 4 Supreme Court Cases 480, Harkirat Singh v. Amrinder Singh, (2005) 13 Supreme Court Cases 511, Sathi Vijay Kumar v. Tota Singh & Ors, (2006) 13 Supreme Court Cases 353, Virender Nath Gautam v. Satpal Singh & Ors, (2007) 3 Supreme Court Cases 617, Umesh Challiyill v. K.P.Rajendran, (2008) II Supreme Court Cases 740, K.K.Ramachandran Master v. M.V. Sreyamakumar & Ors, (2010) 7 Supreme Court Cases 428, Ponnala Lakshmaiah v. Kommuri Pratap Reddy & Ors, (2012) 7 Supreme Court Cases 788, G.M. Siddeshwar v. Prasanna Kumar, (2013) 4 Supreme Court Cases 776 & In The Case of Ashraf Kokkur v. K.V.Abdul Khader & Ors, (2015) 1 Supreme Court Cases 129.

During course of argument, Learned senior Counsel for the election Petitioner i.e. the Opposite Party in the Misc. Case submitted that in view of the above settled position of law, the present election petition cannot be treated to be having any deficiency & as such there is no violation of any of the provisions of the Representation of the People Act. Similarly, contended that a conjoint reading of the entire election petition it would give rise to the irresistible conclusion that the material fact as required under Section 83 (1) (a) have been clearly set out. Therefore, the Opposite Party refuted the allegation that there is no substance at all at least to prima facie establish the allegation of corrupt practices which are out & out false & further claimed that in view of catena of decisions referred to herein above, such issues cannot be scanned at this stage.

Considering the submissions of the parties that the case is based under Order 6, Rule 16 & Order 7, Rule 11 of the Code of Civil procedure, Sections 80-A, 81, 83 & 86 of the R.P. Act, 1951 & also Rule 94-A of the Conduct of Elections Rules, 1961, it is necessary to make reference of these provisions. Before proceeding to determine the case of the parties, the provisions referred to herein above are quoted as herein below:

Code of Civil Procedure:

Order 6, Rule 16: Striking out pleadings. - The Court may at any stage of the proceedings order to be struck out or amended any matter in any pleading-

(a) which may be unnecessary, scandalous, frivolous or vexatious, or

(b) which may tend to prejudice, embarrass or delay the fair trial of the suit, or

(c) which is otherwise an abuse of the process of the Court.

Order 7, Rule 11 : Rejection of plaint. - The plaint shall be rejected in the following cases:

(a) where it does not disclose a cause of action;

(b) where the relief claimed is under-valued, & the Plaintiff, on being required by the Court to so correct the valuation within a time to be fixed by the Court, fails to do so;

(c) where the relief claimed is properly valued, but the plaint is written upon paper insufficiently stamped, & the Plaintiff, on being required by the Court to supply the requisite stamp-paper within a time to be fixed by the Court, fails to do so;

(d) whether the suit appears from the statement in the plaint to be barred by any law

(e) where it is not filed in duplicate;

(f) where the Plaintiff fails to comply with the provisions of rule 9;"

From Representation of the People Act, 1951:

"80A. High Court to try election petitions. - (1) The Court having jurisdiction to try an election petition shall be the High Court.

(2) Such jurisdiction shall be exercised ordinarily by a single Judge of the High Court & the Chief Justice shall, from time to time, assign one or more Judges for that purpose:

Provided that where the High Court consists only of one Judge, he shall try all election petitions presented to that Court.

(3) The High Court in its discretion may, in the interests of justice or convenience, try an election petition, wholly or partly, at a place other than the place of seat of the High Court.]"

"81. Presentation of petitions. - (1) An election petition calling in question any election may be presented on one or more of the grounds specified in [sub-Section (1)] of Section 100 & Section 101 to the [High Court] by any candidate a such election or any elector [within forty-five days from, but not earlier than the date of election of the returned candidate, or if there are more than one returned candidate at the election & the dates of their election are different, the later of those two dates].

Explanation.-In this sub-Section, "elector" means a person who was entitled to vote at the election to which the election petition relates, whether he has voted at such election or not.

[(3) Every election petition shall be accompanied by as many copies thereof as there are Respondents mentioned in the petition & every such copy shall be attested by the Petitioner under his own signature to be a true copy of the petition.]"

"83. Contents of petition. -

(1) An election petition

(a) shall contain a concise statement of the material facts on which the Petitioner relies;

(b) shall set forth full particulars of any corrupt practise that the Petitioner alleges, including as full a statement as possible of the names of the parties alleged to have committed such corrupt practise & the date & place of the commission of each such practise; &

(c) shall be signed by the Petitioner & verified in the manner laid down in the Code of Civil Procedure, 1908 (5 of 1908) for the verification of pleadings:

[Provided that where the Petitioner alleges any corrupt practise, the petition shall also be accompanied by an affidavit in the prescribed form in support of the allegation of such corrupt practise & the particulars thereof.]

(2) Any schedule or annexure to the petition shall also be signed by the Petitioner & verified in the same manner as the petition.]

[86. Trial of election petitions. -

(1) The High Court shall dismiss an election petition which does not comply with the provisions of Section 81 or Section 82 or Section 117.

Explanation. - An order of the High Court dismissing an election petition under this sub-Section shall be deemed to be an order made under clause (a) of Section 98.

(2) As soon as may be after an election petition has been presented to the High Court, it shall be referred to the Judge or one of the Judges who has or have been assigned by the Chief Justice for the trial of election petitions under sub-Section (2) of Section 80A.

(3) Where more election petitions than one are presented to the High Court in respect of the same election, all of them shall be referred for trial to the same Judge who may, in his discretion, try them separately or in one or more groups.

(4) Any candidate not already a Respondent shall, upon application made by him to the High Court within fourteen days from the date of commencement of the trial & subject to any order as to security for costs which may be made by the High Court, be entitled to be joined as a Respondent.

Explanation. - For the purposes of this sub-Section & of Section 97, the trial of a petition shall be deemed to commence on the date fixed for the Respondents to appear before the High Court & answer the claim or claims made in the petition.

(5) The High Court may, upon such terms as to costs & otherwise as it may deem fit, allow the particulars of any corrupt practise alleged in the petition to be amended or amplified in such manner as may in its opinion be necessary for ensuring a fair & effective trial of the petition, but shall not allow any amendment of the petition which will have the effect of introducing particulars of a corrupt practise not previously alleged in the petition.

(6) The trial of an election petition shall, so far as is practicable consistently with the interests of justice in respect of the trial, be continued from day to day until its conclusion, unless the High Court finds the adjournment of the trial beyond the following day to be necessary for reasons to be recorded.

(7) Every election petition shall be tried as expeditiously as possible & endeavour shall be made to conclude the trial within six months from the date on which the election petition is presented to the High Court for trial."

94-A of the Conduct of Elections Rule, 1961:

"Form of affidavit to be filed with election petition. - The affidavit referred to in the proviso to sub-Section (1) of Section 83 shall be sworn before a magistrate of the first class or a notary or a commissioner of oaths & shall be in Form 25."

Order 6, Rule 16 of the Code of Civil Procedure makes three clear contingencies for striking out the pleadings which runs as follows:

(a which may be unnecessary, scandalous, frivolous or vexatious, or

(b) which may tend to prejudice, embarrass or delay the fair trial of the suit, or

(c) which is otherwise an abuse of the process of the Court."

Reading of the pleading in paragraphs-6 & 9 of the Misc. Petition does not bring the case under any of the contingencies indicated herein above. Law is fairly well settled that if the rule or pleadings are not attended, Court would not order striking off the pleadings. Further, law is also well settled as laid down in the case of Sathi Vijay Kumar v. Tota Singh & Ors, (2006) 13 Supreme Court Cases 353 holding that not only power of striking off pleading should be exercised sparingly & with extreme certain of circumspection but at the same time it cannot be also overlooked that normally a Court cannot direct parties as to how they should prepare their pleadings.

In deciding matters involving Order 6, Rule 16 law as settled in the case of D. Ramachandran v. R.V.Janakiraman & Ors. (1999) 3 Supreme Court Cases 267 categorically holding that the duty of Court at such preliminary stages is to see as to whether averments made in the petition should be assumed to be true & the Court has to find out whether those averments disclose a cause of action or a triable case or a triable issue as such. The Court at such stage is not justified to probe into fact on the basis of the controversy as raised in the written statements & borrowed in Miscellaneous application. Scan of the allegations made out in the present case, I find it is not vitiated by all or any of the defect as presented under Order 6, Rule 16 of the Code of Civil procedure. In view of my observation, as herein above, there is no question of attracting the provision of Rule 11, Order 7 of the Code of Civil Procedure in the present case. Petitioner in the Misc. Case has put his allegation in to different compartments by filing a clear statement to the said effect & had his argument based on such statement. Law is well settled, as held by Hon''ble Apex Court, that the Court in exercise of power under Order 7 Rule 11 of the Code of Civil Procedure cannot direct the pleading in to several parts & consider whether each one of them discloses a cause of action. I am refraining myself from advancing to the arguments pertaining to each allegations on corrupt practise lest any observation at this stage might affect the trial. Section 83 (1) (a) of the Act mandates that in order to constitute a cause of action & material fact, the basic & preliminary facts which the Petitioner is bound under the law to substantiate in order to succeed have to be pleaded in an election petition. Facts which are essential to disclose a complete cause of action are material facts & are essentially required to be placed. On the other hand, particulars & details of the case set up by the party as one such place which are necessary to amplify, rely or explain material facts. This being a vital part in an election petition, it cannot be the subject matter before trial of an election petition. In the above context, I find sufficient force in the submission of the senior Counsel for Opposite Party.

In the factual backdrop of the case, allegation on corrupt practise at the instance of the Petitioner runs to several paragraphs. Requirement of law is an election petition must contain a concise statement of "material facts" on which the Petitioner relies what particulars would be said to be material facts would always depend upon the fact of each case & no rule of universal application can be laid down. In this particular case material facts which are required to be pleaded in the election petition as required under Section 83(1) of the Act read with Order 7, Rule 11 (a) of the Code of Civil Procedure have been pleaded by the Election Petitioner subject to however its proving in the trial. Law on this is settled holding that High Court/Election Tribunal is estopped from finding out correctness of allegations & evidence in support of averments by entering into merits of the case as its the duty in trial. This legal position has been made clear by the Hon''ble Apex Court in the case of Virender Nath Gautam v. Satpal Singh & Ors, (2007) 3 Supreme Court Cases 617. The Apex Court by another decision in the case of Ponnala Lakshmaiah v. Kommuri Pratap Reddy & Ors., (2012) 7 Supreme Court Cases 788 has come to hold that Courts have to guard against the allegation of elected candidates seeking dismissal of election petitions in limine on technical grounds or prolonged proceedings & need of the Court is to avoid such hyper technical approach. In deciding such a matter, the Hon''ble Apex Court in the case of G.M. Siddeshwar v. Prasanna Kumar, (2013) 4 Supreme Court Cases 776 has come to hold that merely because the affidavit was defective did not mean that petition filed was not an election petition under R.P. Act. In the case at hand, perusal of affidavit by the election Petitioner prima facie indicates that there was substantial compliance with the prescribed format. Decision rendered in the case of Murarka Radhey Shyam Ram Kumar v. Roop Singh Rathore, (1964) 3 SCR 573, the Constitution Bench decision has settled the present issue & the case of the Opposite Party in the case is fully covered by this Constitution Bench. In this decision, the Hon''ble Apex Court also has gone to the extent that merely because of a defective affidavit is not a sufficient ground for summoning dismissal of an election petition as the provisions of Section 83 of the Act are not mandatory. Decision rendered in the case of Jitu Patnaik v. Sanatan Mohakud & Ors, (2012) 4 Supreme Court Cases 194 is not relevant for the present case in view of difference in the fact situation. Further in view of decision rendered by Hon''ble Apex Court in the case of Ponnala Lakshmaiah v. Kommuri Pratap Reddy & Ors, (2012) 7 Supreme Court Cases 788 being a later Judgment of the Hon''ble Apex Court, has to prevail over the case of Jitu Patnaik (supra). In deciding a similar set of allegations, the Hon''ble Apex Court in the case of Harkirat Singh v. Amrinder Singh, (2005) 13 Supreme Court Cases 511 in para-82 has come to hold that the High Court stepped into the prohibited area of appreciating the evidence & by entering into merits of the case which would be permissible only at the stage of trial of the election petition & not at the stage of consideration whether the election petition was maintainable. Petitioner though strongly relied on the case of Dr. Shipra (Smt) & Ors v. Shantilal Khoiwal & Ors, (1996) 5 Supreme Court Cases 181 which supported the decision rendered in the case of Purushottam v. Returning Officer, Amaravati & others, AIR 1992 Bombay 227 is no more a good law in view of case involving. T.M. Jacob v. C.Poulose & Ors, (1999) 4 Supreme Court Cases 274 as well as Anil R.Deshmukh v. Onkar N. Wagh & Ors., (1999) 2 Supreme Court Cases 205. Test as per above these two decisions is returned candidate must get a correct idea on the allegation of corrupt practices so that it may be possible to understand & meet the charges levelled against him. In the case of Mayar (H.K.) Ltd. & Ors v. Owners & Parties, Vessel M.V. Fortune Express & Ors, (2006) 3 SCC 100, Hon''ble Apex Court categorically came to hold that so long as plaint discloses some cause of action which requires determination by the Court, the mere fact that in the opinion of the Judge the Plaintiff may not succeed cannot be a ground for rejection of the plaint at the threshold. In para-12 of the above Judgment, the Hon''ble Apex Court held that a cause of action is a bundle of fact which are required to be proved for obtaining relief & for the said purpose, the material facts are required to be stated but not evidence in certain where the pleadings relied on are in regard misrepresentation, fraud, wilful default, undue influence or of the same nature but ultimately the same has to be thrashed out of the end of trial. Similarly, in the case of Mahendra Pal v. Ram Dass Malanger & Ors, (2000) 1 Supreme Court Cases 261, the Hon''ble Apex Court considering the application under Order 6, Rule 16 & Order 7, Rule 11 of the Code of Civil Procedure held that it is a substance & not merely the form, which is required to be looked into for construing the pleadings. In the case of Mithilesh Kumar Pandey v. Baidyanath Yadav & others, AIR 1984 Supreme Court 305, the Hon''ble Apex Court held that a true copy means a copy which is wholly & substantially the same as the original & where there are insignificant or minimal mistake, the Court may not take notice thereof. Similarly, in the case of T.M. Jacob v. C. Poulose & Others, (1999) 4 Supreme Court Cases 274 the Hon''ble Apex Court held as follows:

Alleged copy supplied in the true copy of the election petition in the copy of affidavit found missing the name & address of the Notary as well as stamp & seal of the Notary before whom affidavit was sworn. High Court answered in negative & Hon''ble Apex Court held Election Petition did not suffer from any defect which attract the provision of Section 86(1) of the Act. Case is similar to the case of Anil R.Deshmukh v. Onkar N.Wagh & Ors, (1999) 2 Supreme Court Cases 205."

In the case of Chandrakant Uttam Chodankar v. Dayananda Rayu Mandrakar & Ors, (2005) 2 SCC 188 in paragraph-41 therein the Hon''ble Apex Court has categorically held that the verification in the election petition although was defective but that cannot be fatal to the maintainability of the election petition & there cannot be rejection of election petition on such technical grounds. In the case of T.M.Jacob v. C.Poulose & Ors, (1999) 4 Supreme Court Cases 274, the Hon''ble Apex Court even though gone to the extent of holding that defects complained of in the present case were not such as could have misled the Appellant at all. In coming to decide the question at hand, it is found that during the arguments, Learned Counsel for the Petitioner was not able to point out as to how the Appellant could have been prejudiced by the alleged omissions on the copy of the affidavit served on him. In my opinion it is not every minor variation in form but only a vital defect in substance which can lead to a finding of non-compliance with the provisions of Section 81(3) of the Act with the consequences under Section 86(1) of the Act to follow. The weight of authority clearly indicates that a certain amount of flexibility is envisaged. The tests suggest in the cases of Murarka Radhey Shyam, T.M. Jacob as well as A.R. Deshmukh are sound tests & are now well settled. This is also the view of the Hon''ble Apex Court in a catena of the decisions Referred to therein (supra) Considered in the background & in view of above legal position, I am of the view that alleged defect in the election petition did not attract provision contained in Section 86(1) of the Act for alleged non-compliance with last part of Section 81(3) of the Act & find that there has been substantial compliance with the requirement envisaged in Section 81(3) of the Act in supplying the true copy of the affidavit & the election petition. Hence, there is no application of Order 7, Rule 11 of the Code of Civil Procedure for which the present Misc. Case has no merit to stand.

Again coming to the question raised from the point of view of Order 16, Rule 6 of the Code of Civil Procedure, the requirement of law would be to see whether under the averments the relief prayed for could be granted to the Appellant & the Court has to find out whether the averments makes out a cause of action or at least there is a triable issue. Moreover, the election petition does prima facie disclose a cause of action. There is no merit in the contention of the Petitioner in this Misc. Case. Law, as discussed in detail herein above, is well settled in holding that scope of interference in such matter is very very limited. A case of this nature must be analised from the bare reading of the petition & not that the Court is to find out the defects at such preliminary stages. Since election petition has brought out a prima facie case, the case must face the trial & under the circumstances it is not possible at this stage to strike out certain portion from the pleadings for which this Court dismisses the request of the Petitioner for striking out certain portion from the election petition, the Misc. Case at the instance of the return candidate deserve to be dismissed.

Further perusal of citation in the case of Ponnala Lakshmaiah v. Kommuri Pratap Reddy & Ors, (2012) 7 Supreme Court Cases 788, the Hon''ble Apex Court in similar situation taking note of all earlier Judgments on this question held dismissal of election application at the threshold as bad & thus dismissed the appeal preferred with award of cost of Rs.25,000/-. In the latest Judgment in the case of Ashraf Kokkur v. K.V.Abdul Khader & Ors, (2015) 1 Supreme Court Cases 129, the Hon''ble Apex Court while deprecating such attempts of the Kerala High Court set aside the impugned order dismissing the election petition & remitted the matter to the Kerala High Court for trial of the election case on merit.

Consequently, I do not find any merit in the Misc. Case No.107 of 2014 arising out of Election Petition No.21 of 2014 & the same is hereby dismissed. The election petition was filed on 30.6.2014. The returned candidate did not file his written statement in time. Ultimately, the written statement was accepted finding the delay in filing the same by award of cost of Rs.10,000/. Issues in the matter has been settled since 25.11.2014. The trial in the matter could not commence for the return candidate filing the present Misc. Case. This Court observes that the return candidate is some how or other busy in delaying the case & not permitting the Court to proceed with trial. For this conduct of the return candidate, this Court while dismissing Misc. Case No.107 of 2014 for having no merit awards cost of Rs.15,000/- Rupees fifteen thousand) for the deliberate conduct of the Petitioner, which amount shall be paid to the election Petitioner within a period of one week from the date of the order.