# Abhay Kumar @ Dheeraj Ojha v. Rakesh Kumar Verma & Ors

- **Citation:** (2024) 4 ILRA 1263
- **Court:** High Court of Judicature at Allahabad
- **Decided:** 2024-04-08
- **Case number:** Election Petition No. 6 of 2022
- **Bench:** Alok Mathur
- **Source:** https://unisonlegal.in/judgment/allahabad-high-court/abhay-kumar-dheeraj-ojha-v-rakesh-kumar-verma-ors-51791
- **Pages:** 36

## Headnote

Civil Law - Representation of the People
Act, 1951 - Sections 80, 81, 82, 83, 86,
100 - Election Petition - Constitution of
India, 1950- Article 227- - Petitioner
challenged the election of Respondent No. 1
from 250, Raniganj Assembly Constituency,
Pratapgarh, alleging improper acceptance of
nomination materially affected the election
result.
Respondent
raised
preliminary
objections under Sections 80, 81, 86, and
Order VII Rule 11, Order VI Rule 16 CPC,
contesting petitioner's locus, pleading defects,
and improper inclusion of Returning Officer as
a party. Court held: (1) Petitioner's locus as a
duly nominated candidate or elector was not
conclusively disproved at the preliminary stage,
requiring evidence (Tej Bahadur Vs Narendra
Modi, 2021 (14) SCC 211). (2) Pleadings
sufficiently alleged material effect on election
results per Section 100(1)(d)(i), and improper
acceptance
of
the
returned
candidate's
nomination does not require further proof of
material
effect
(Mairembam
Prithviraj
Vs
Pukhrem Sharatchandra Singh, (2017) 2 SCC
487). (3) Estoppel does not apply to statutory
grounds under Section 100. (4) Missing or
blurred pages did not violate Section 81(3) as
all pages were filed with the court (Mithilesh
Kumar Pandey Vs Baidyanath Yadav, (1984) 2
SCC 1). (5) Returning Officer was not a
necessary party per Section 82 (Jyoti Basu Vs
Debi Ghosal, (1982) 1 SCC 691); deletion
ordered, not dismissal. (6) Defective affidavit
was curable, not warranting dismissal under
Section 86 (Saritha S. Nair Vs Hibi Eden,
(2021) 14 SCC 148). Applications under Order
VII Rule 11, Order VI Rule 16, and Section 86
rejected; petitioner granted two weeks to file a
fresh affidavit. (Paras 18-85)

List of Cases cited:

## Text

_Characters 0–39,996 of 126,166. This is a partial read: ask again with offset=39996 for what follows._

4 All. Abhay Kumar @ Dheeraj Ojha Vs. Rakesh Kumar Verma & Ors.
1263
challenges confronting the society, as
society could not long endure and develop
under
serious
threats
of
crime
and
disharmony. It is therefore, necessary to avoid
undue leniency in imposition of sentence.
Thus, the criminal justice jurisprudence
adopted in the country is not retributive but
reformative and corrective. At the same time,
undue harshness should also be avoided
keeping in view the reformative approach
underlying in our criminal justice system.
17. Keeping in view the facts and
circumstances of the case and also keeping in
view criminal jurisprudence in our country
which is reformative and corrective and not
retributive, this Court considers that no
accused person is incapable of being
reformed and therefore, all measures should
be applied to give them an opportunity of
reformation in order to bring them in the
social stream.
18. As discussed above, ''reformative
theory of punishment' is to be adipted and for
that reason, it is necessary to impose
punishment keeping in view the ''doctrine of
proportionality'. It appears from perusal of
impugned judgment that sentence awarded by
learned trial court for life term is very harsh
keeping in view the entirety of facts and
circumstances of the cases and gravity of
offence. Hon'ble Apex Court, as discussed
above, has held that undue harshness should
be
avoided
taking
into
account
the
reformative approach underlying in criminal
justice system."

25. We have carefully examined the
submission in that regard and we find that the
accused appellant is the first offender. There
is no criminal history of any prior sexual
perversity attributed to the accused appellant.
The accused appellant has also undergone
incarceration of more than eight years with
remission. Minimum punishment for the
offence under the POCSO Act is seven years.
Keeping in view the criminal jurisprudence
which
encompasses
reformative
and
corrective theory, as also the doctrine of
proportionality, it would not be necessary to
award maximum sentence to the appellant,
who
is
the
first
offender.
In
such
circumstances, we are of the view that the
sentence awarded to the accused appellant
under Section 377 IPC deserves to be
modified and substituted with the sentence
already undergone by him. The appeal,
accordingly, is partly allowed. The fine
imposed by the accused appellant, however,
is maintained. The judgment and order passed
by the court below in Sessions Trial No.125
of 2016, arising out of Case Crime No.319 of
2016, under Sections 452, 377, 506 IPC,
Section 3⁄4 POCSO Act and Section 3(2)(v)
SC/ST Act, Police Station Pipari, District
Kaushambi is modified, accordingly. The
appellant shall be released, forthwith, on the
period undergone by him and upon deposit of
fine or completion of default sentence in lieu
of fine unless he is required in any other case,
subject to compliance of Section 437A
Cr.P.C.
----------
(2024) 4 ILRA 1263
ORIGINAL JURISDICTION
CIVIL SIDE
DATED: LUCKNOW 08.04.2024

BEFORE

THE HON'BLE ALOK MATHUR, J.

Election Petition No. 6 of 2022

Abhay Kumar @ Dheeraj Ojha ...Petitioner
Versus
Rakesh Kumar Verma & Ors.
 ...Respondents

Counsel for the Petitioner:
In Person, Amol Kumar Srivastava, Chetan
Kumar Tiwari, Kuldeep Pati Tripathi, Pramod
Kumar Pandey, Sakshi Singh, Shivanshu Mishra
1264 INDIAN LAW REPORTS ALLAHABAD SERIES
Counsel for the Respondents:
Santosh Kumar Yadav, Ashutosh Chaurasia, Dr.
Pooja Singh, Kuldeep Pati Tripathi, Santosh Kr.
Yadav Warsi, Vijay Vikram Singh

Civil Law - Representation of the People
Act, 1951 - Sections 80, 81, 82, 83, 86,
100 - Election Petition - Constitution of
India, 1950- Article 227- - Petitioner
challenged the election of Respondent No. 1
from 250, Raniganj Assembly Constituency,
Pratapgarh, alleging improper acceptance of
nomination materially affected the election
result.
Respondent
raised
preliminary
objections under Sections 80, 81, 86, and
Order VII Rule 11, Order VI Rule 16 CPC,
contesting petitioner's locus, pleading defects,
and improper inclusion of Returning Officer as
a party. Court held: (1) Petitioner's locus as a
duly nominated candidate or elector was not
conclusively disproved at the preliminary stage,
requiring evidence (Tej Bahadur Vs Narendra
Modi, 2021 (14) SCC 211). (2) Pleadings
sufficiently alleged material effect on election
results per Section 100(1)(d)(i), and improper
acceptance
of
the
returned
candidate's
nomination does not require further proof of
material
effect
(Mairembam
Prithviraj
Vs
Pukhrem Sharatchandra Singh, (2017) 2 SCC
487). (3) Estoppel does not apply to statutory
grounds under Section 100. (4) Missing or
blurred pages did not violate Section 81(3) as
all pages were filed with the court (Mithilesh
Kumar Pandey Vs Baidyanath Yadav, (1984) 2
SCC 1). (5) Returning Officer was not a
necessary party per Section 82 (Jyoti Basu Vs
Debi Ghosal, (1982) 1 SCC 691); deletion
ordered, not dismissal. (6) Defective affidavit
was curable, not warranting dismissal under
Section 86 (Saritha S. Nair Vs Hibi Eden,
(2021) 14 SCC 148). Applications under Order
VII Rule 11, Order VI Rule 16, and Section 86
rejected; petitioner granted two weeks to file a
fresh affidavit. (Paras 18-85)

List of Cases cited:

1. Tej Bahadur Vs Narendra Modi, 2020 (2) All
WC 1871, affirmed in 2021 (14) SCC 211 (Para
11)

2. Charan Lal Sahu Vs Fakruddin Ali Ahmed
(Para 11)
3. Charan Lal Sahu Vs Giani Zail Singh (Para
11)

4. Om Prakash Srivastava Vs U.O.I., (2006) 6
SCC 207 (Para 24)

5.
Mairembam
Prithviraj
Vs
Pukhrem
Sharatchandra Singh, (2017) 2 SCC 487 (Paras
30, 31)

6. Durai Muthuswami Vs N. Nachiappan, (1973)
2 SCC 45 (Para 30)

7. Jagjit Singh Vs Dharam Pal Singh, 1995 Supp
(1) SCC 422 (Para 30)

8. Vashist Narain Sharma Vs Dev Chandra,
(1955) 1 SCR 509 (Para 30)

9. Kisan Shankar Kathore Vs Arun Dattatray
Sawant, (2014) 14 SCC 162 (Para 30)

(Delivered by Hon'ble Alok Mathur, J.)

1. Heard Sri Kuldeep Pati Tripathi,
Sri Chetan Kumar Tiwari, Ms. Sakshi
Singh, Sri Pramod Kumar Pandey and Dr.
Pooja Singh, learned counsel for the
petitioner as well as Sri Prem Prakash,
learned Senior Advocate assisted by Sri
Santosh Kumar YadavWarsi,
learned
counsel appearing for the respondents.

2. The instant election petition has
been filed Abhay Kumar @ Dheeraj Ojha
challenging the election of the returned
candidate namely Rakesh Kumar Verma
(Respondent no.1) for the Vidhan Sabha
2022
Elections,
from
250,
Raniganj
Assembly Constituency, Pratapgarh, Uttar
Pradesh. The petitioner has sought the
relief of declaration of the election of the
returned candidate as null and void and
further prayed that he be declared as
elected member of the legislative assembly.

3.

The
main
ground
for
challenging the election of respondent no.1
by the petitioner is that the returning officer
4 All. Abhay Kumar @ Dheeraj Ojha Vs. Rakesh Kumar Verma & Ors.
1265
had improperly accepted his nomination
which has materially affected the result of
the election.

4. Certain relevant facts regarding
the election in question are that the
Notification for holding general elections
of members of U.P Legislative Assembly
was issued on 01/02/2022. The last date of
filing of the nomination papers was
08/02/2022 and the polling took place on
27/02/2022 and the counting of votes was
done on 10/03/2022. Respondent No. 1, the
returned candidate had polled 75583 votes
while the election petitioner had secured
72934 votes, and the result was declared on
10/03/2022 itself.

5. This Court, by means of order
dated 25/04/2022 had issued notices to the
respondents. Notices were duly served
upon the respondents and appearance was
put in on behalf of respondent no.1 and
14.

6. Preliminary objections for
dismissal of the election petition in limine
has been filed by respondent no.1 under
Section 80/81 read with Section 86 as well
as under Order VI Rule 16 of the
Representation of People's Act, 1951
(hereinafter, referred to as "the Act of
1951"), and also an application under order
VII Rule 11 CPC for dismissal of the
petition, as it does not disclose the cause of
action.

7. The preliminary objection raised
by the respondent can broadly be classified
in 2 sets. The first set of objections is
regarding locus of the election petitioner to
maintain the Election Petition while the
second set of objections pertain to the
defect and infirmity in the Election
Petition.
A.
MAINTAINABILITY
OF
ELECTION PETITION

8. With regard to the issue
regarding
maintainability
of
election
petition, it has been contended on behalf of
the
respondent
no.1
that
oath
was
subscribed by the election petitioner on
07.02.2022 i.e. the date prior to filing of
nomination papers on 08.02.2022. It is
stated that the said facts are discernible
from the copy of nomination papers filed
along with the Election Petition and also
certificate in this regard issued by the
Returning Officer. He submits that oath has
to be administered on the same day after
presentation of nomination papers. The
election
petitioner
having
failed
to
subscribe
oath
on
08.02.2022
after
presentation of nomination paper, is fatal to
his candidature, and he has incurred
disqualification
and
accordingly
his
nomination was liable to be rejected by the
Returning Officer as he is not a "duly
nominated candidate" and consequently
cannot maintain Election Petition

9. It has been submitted that aspect
of locus of an individual to maintain
Election Petition has to be determined
statutorily as per provisions contained in
the Representation of the People Act, 1951
(hereinafter referred to as "the Act, 1951").
Section 81(1) of the Act, 1951 provides that
Election Petition may be presented by any
candidate to such election or any elector.
The
Elector
has
been
defined
in
Explanation to Section 81 of the Act, 1951
which states that "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. The
definition of "candidate" as provided in
Section 79(b) of the Act, 1951 states that
"candidate" means a person who has been
1266 INDIAN LAW REPORTS ALLAHABAD SERIES
or claims to have been duly nominated as a
candidate at any election.

10. It has further been stated that
oath has to be subscribed before the
Returning Officer and Article 173(a) of the
Constitution of India, requires that oath be
subscribed before the "authorised officer"
as per form contained in IIIrd Schedule of
the Constitution of India.

11. It has been submitted that this
Court in the case of Tej Bahadur Vs.
Narendra Modi, 2020 (2) All WC 1871
had dismissed the election petition on the
ground that election petitioner had failed to
comply with the mandatory requirement
contained in Section 33(3) of the Act, 1951
and it was held therein that the election
petitioner
was
not
"duly
nominated
candidate" and the Election Petition filed
by him was dismissed at the threshold and
the judgment was also affirmed by the
Apex Court in its judgment reported in the
case of Tej Bahadur Vs. Narendra Modi,
2021 (14) SCC 211. Reliance has also been
placed by the respondents on the case of
Charan Lal Sahu vs Fakruddin Ali
Ahmed (supra) and Charan Lal Sahu vs
Giani Zail Singh (Supra)

12. The election petitioner on the
other hand has denied the allegations and
has submitted that the application for
dismissal of election petition has been filed
under Section 86 of the Act, 1951 and
therefore the objections which can be
raised should pertain only to the provisions
contained in Section 81, 82 or 117 of the
Act, 1951. It was stated that the nomination
paper of the election petitioner having been
duly accepted by the Returning Officer and
hence he has automatically become a duly
nominated candidate and consequently
there is no defect in the locus of the
election petitioner in maintaining the
present
election
petition.
He
further
submits that such an objection cannot be
raised under Section 81 of the Act, 1951. It
was further alternatively submitted that
election petition can be maintained by a
duly nominated candidate or any elector,
and the petitioner is also the Elector for the
said constituency and hence on that account
also he has locus to file the election
petition.

13.

Considering
the
rival
submissions with regard to the locus of the
election petitioner to maintain the petition,
though, the said objection does not fall
under Section 86 of the Act, 1951, but this
Court has proceeded to consider the said
objection
as
it
pertains
to
the
maintainability of this election petition and
can be considered at this stage even if
strictly it does not fall for consideration
under Section 86 of the Act, 1951.

14. In support of the application
under Section 86 of the Act, 1951, it was
contended by the learned counsel for the
respondent
no.1
that
four
sets
of
nomination papers can be filed by any
candidate. The election petitioner had filed
four sets of nomination papers, while in the
Election
Petition
only
one
set
of
nomination papers filed on 08.02.2022 has
been annexed. A certificate has been issued
by the Returning Officer certifying that
oath was administered to the election
petitioner on 07.02.2022, is also on record.
Accordingly, there is no dispute that firstly,
4 sets of nomination papers are filed by the
election petitioner, and secondly that he had
in fact subscribed to the oath as provided
under Article 173(a) of the Constitution of
India. The question to be considered is
whether the oath was administered to him
by the Returning Officer before filing of
4 All. Abhay Kumar @ Dheeraj Ojha Vs. Rakesh Kumar Verma & Ors.
1267
the nomination papers or subsequent to
filing of the nomination papers. According
to the respondent no.1, this plea has been
set up relying solely upon the material
available
on
record,
which
is
the
nomination papers filed by the election
petitioner on 08/02/2022, without asserting
as to whether any nomination paper was
filed by him on 07/02/2022.

15. Even if the facts as submitted
by the respondent are accepted by this
Court, then whether on the basis of the
material available on record a finding can
be returned at this stage, that the election
petitioner did not subscribe to the oath of
affirmation as per the Constitution, which
according to the respondent no.1 should
have been administered prior to submission
of the nomination form?

16. The main plank of the
arguments regarding locus is built upon the
copy of one set of the nomination papers
filed on 08/02/2022 which has been
annexed with the election petition along
with the certificate issued by the Returning
Officer on 07/02/2022 with regard to the
administration of oath, both of which are of
different dates. It is on the strength of these
2 documents alone that this Court has been
called upon by respondent no.1 to hold that
the petitioner does not have locus to file the
present election petition.

17. On considering the aforesaid
contention it is noticed that the remaining 3
nomination
papers
submitted
by
the
election petitioner are not on record, nor is
there any averment by the respondent no.1
that no nomination paper was filed on
07.02.2022 on the date on which the
election petitioner had taken oath. In case
any nomination paper has been filed on
07.02.2022, and the same has been
accepted by the Returning Officer, then
even according to respondent no.1 there
would be no infirmity in this regard, to hold
that he is not a duly nominated candidate.

18. The said plea has been taken
only on the basis of one set of nomination
papers which has been annexed by the
election petitioner which was filed on
08/02/2022,
and
oath
having
been
administered one day prior i.e 07.02.2022.
It is admitted that 4 sets of nomination
papers filed by him before the returning
officer while only 1 of those sets, has been
annexed with the election petition. In case
the respondent is able to demonstrate that
the election petitioner did not file any
nomination paper on 07.02.2022, then it
may be open for the respondent to set up a
plea that the election petitioner is not a duly
nominated candidate as he has failed to
subscribe to the oath as provided for in the
Constitution of India, prior to submission
of his nomination papers. In the aforesaid
facts, this Court is of the considered view
that this issue cannot be decided in the
absence of relevant pleadings, and proper
opportunity to place all the relevant
material necessary for deciding the said
issue. The deficiencies pointed out by the
respondent no.1 are nothing but contentions
which can form part of their defence and in
any case such contentions being contestable
questions, are to be made subject matter of
issues and only after permitting the
petitioner to lead evidence, can the matter
be decided. The said issue can be decided
only after giving opportunity to both the
parties to lead evidence during the trial, and
not at the very threshold, as it may cause
injustice
by
nonsuiting
the
election
petitioner only on the basis of the material
on record, when there is no dispute with
regard to the fact that more than one
nomination papers were filed but only one
1268 INDIAN LAW REPORTS ALLAHABAD SERIES
nomination paper has been annexed along
with the election petition.

19. Even if the said issue has to be
decided, it has to be done after receiving
evidence and cannot be decided as a
preliminary issue in the facts of the present
case, to non-suit the election petitioner at
the very threshold. Accordingly, the said
contention of respondent no.1 is rejected at
this stage.

B. Civil Misc. Application No. 3
of 2022

(Under Order VII Rule 11 CPC)

20. The 2nd application pressed by
the respondent no.1 is Application No. 03 of
2022 filed under Order 7 Rule 11 CPC for
rejection of the election petition on account of
non-disclosure of cause of action. It has been
submitted that from the perusal the election
petition it would be evident that there is no
averment to the effect that the election result
was affected due to improper acceptance of
the nomination papers of the respondent no.1.
In support of the said contention, it has been
submitted that the respondent no.1 had
secured 75,583 votes whereas the election
petitioner had secured 72,934 votes and that
was a margin of 2449 votes. It has further
been stated that only 166 votes were rejected
and 1139 votes were polled in the option of
NOTA, and therefore contends that even if
the rejected votes had been cast in favour of
the election petitioner he could not have been
declared elected, and there is no mention in
the entire election petition as to how the
improper acceptance of the nomination of
respondent no.1 had materially affected his
election.

21. Counsel for the respondent
no.1 submitted that perusal of the pleadings
made in the election petition specially in
paragraph No. 57 would indicate that there
is absence of any averment as to how the
election result has materially affected due
to improper acceptance of the nomination
paper. It was further contended that at the
time of scrutiny of the nomination papers
no objection was raised by the election
petitioner before the Returning Officer, and
therefore applying the principle of estoppel
and acquiescence the election petitioner is
precluded from raising objections in this
regard, and accordingly, it is on the basis of
the aforesaid facts it is contended that no
cause of action is disclosed in the election
petition and therefore it deserves to be
dismissed.

22. On behalf of the election
petitioner it has been submitted that as per
provisions of Section 100(d)(i) of the Act,
1951, the election of respondent no.1 has
been challenged on the ground of improper
acceptance
of
nomination,
and
the
conditions laid down in section 100(d) of
the Act of 1951 is to the effect that the
result of the election, insofar as it concerns
the returned candidate, has been materially
affected, has been clearly stated in
paragraph No. 57, and further substantiated
in paragraph Nos. 72, 73, 74 and 76 of the
election petition. It is submitted that the
ground raised by the respondent in the
present
application
is
accordingly
misconceived and deserves to be rejected.

23. It has further been submitted
on behalf of the election petitioner that
where
the
allegation
of
improper
acceptance of nomination has been made
with regard to the returned candidate, then,
even if it is not been mentioned in the
election petition that the acceptance of his
nomination papers has materially affect the
election, still the election petition can have
4 All. Abhay Kumar @ Dheeraj Ojha Vs. Rakesh Kumar Verma & Ors.
1269
been dismissed on this ground in as much
as
respondent
no.1
is
the
returned
candidate, and once it is held that
acceptance of his nomination was improper
or illegal, his election would have to be set
aside. A perusal of the aforesaid pleadings
would indicate that it cannot be said that no
cause of action is made out on a bare
reading of the election petition.

24.

Considering
the
above
contentions it would be gainful to refer to
the
Hon'ble
Supreme
Court
in Om
Prakash Srivastava v. Union of India &
Anr., (2006) 6 SCC 207 where they have
explained the expression "cause of action"
in the following words:

"The expression "cause of action"
has acquired a judicially settled meaning.
In the restricted sense "cause of action"
means the circumstances forming the
infraction of the right or the immediate
occasion for the reaction. In the wider
sense, it means the necessary conditions for
the maintenance of the suit, including not
only the infraction of the right, but also the
infraction coupled with the right itself.
Compendiously,
as
noted
above
the
expression means every fact, which it would
be necessary for the plaintiff to prove, if
traversed, in order to support his right to
the judgment of the Court. Every fact,
which is necessary to be proved, as
distinguished from every piece of evidence,
which is necessary, to prove each fact.
comprises in "cause of action"."

25. Considering the application
under Order VII Rule 11 CPC on the
ground that the election petition does not
disclose any cause of action, the learned
Counsel for respondent no.1 has urged that
the election petitioner has not been able to
substantiate that improper rejection of the
nomination of the respondent no.1 would
materially affect the election. A bare
perusal of the scheme of act of 1951 would
indicate that Section 100(1)(a) to (c) of the
Act, 1951 deals with disqualification,
corrupt practices and improper rejection of
nominations,
respectively,
which
are
grounds for setting aside the election. The
sine qua non for setting aside an election
under Section 100(1)(d) of the Act, 1951 is
that the result of the election, in so far as it
concerns a returned candidate, has been
materially affected. Under Section 81 of
the Act, 1951 an election petition calling in
question any election may be presented on
one or more grounds specified in subSection (1) of Section 100 and Section 25
of the Act, 1951. The contention of Mr.
Prem
Prakash Yadav
learned
Senior
Counsel for the Respondent no.1 is that
even if it is held that the nomination of the
petitioner was improperly accepted, his
election cannot be set aside in the absence
of any pleading or proof that the result was
materially
affected
by
the
improper
acceptance of the nomination. It was
further submitted that an election cannot be
set aside on the ground of improper
acceptance of any nomination without a
pleading and proof that the result of the
returned candidate was materially affected.

26. The question to be considered
is whether as per Act of 1951 and also the
judgments of the Hon'ble Supreme Court
relating to the pleading and proof of the
fact of the result of the election being
materially affected applies to a case where
the nomination of the returned candidate is
declared to have been improperly accepted?

27. At the very outset, a bare
perusal of the election petition would
disclose that in paragraph No. 69 there is a
long list of allegations with regard to false
1270 INDIAN LAW REPORTS ALLAHABAD SERIES
information being given on affidavit by
respondent No. 1 along with his nomination
form, and in paragraph 75 and 76 it has
been categorically stated that improper
acceptance of nomination of returned
candidate has materially affected the result
of the election, which is liable to be set
aside. Accordingly, this is not the case
where there is absence of pleadings to the
effect the improper acceptance of the
nomination of the return candidate has not
materially affected the election, while in
paragraph 68 of the election petition it has
been alleged, that the affidavit in support of
the nomination form of the respondent no.1
was not verified by the Notary, nor has it
been signed by him and merely stamp is
affixed, and consequently in absence of a
proper affidavit the nomination paper ought
to have been rejected.

28. The bare perusal of the election
petition therefore clearly indicates that the
election petitioner has duly taken the plea
that the improper acceptance of the
nomination of the returned candidate has
materially affected the result of the
election. Once pleadings have been made in
the election petition that the election has
been materially affected, the sufficiency of
the same, as well as the material in support
of the pleadings, and its effect on the
election of the returned candidate, are
issues to be considered at the time of
hearing of the election petition. The
petition cannot be thrown out at the very
outset on the ground that no "cause of
action" is made out, when such a ground
has been taken by the election petitioner as
mandated in provisions contained in
Section 100(d)(i) of the Act of 1951. At this
stage considering the application of the
respondent no.1 under Order VII Rule 11
CPC, the enquiry would be limited only to
the aspect as to whether such a ground has
been raised by the election petitioner in
assailing the election and not to the extent
whether the ground is made out or not,
which determination can be made only
after final hearing.

29. The Hon'ble Supreme Court in
the
case
of
Eldeco
Housing
and
Industries Ltd. Vs. Ashok Vidyarthi and
others, Civil Appeal No. 7891 of 2023
(arising out of SLP (C) No. 19465 of 2021),
decided on 30.11.2023, in para 17 the Court
has held as under :-

"17. In Kamala and Ors. v. K.T.
Eshwara Sa and Ors., (2008) 12 SCC 661
this Court opined that for invoking Clause
(d) of Order VII Rule 11 Code of Civil
Procedure, only the averments in the plaint
would be relevant. For this purpose, there
cannot be any addition or subtraction. No
amount of evidence can be looked into. The
issue on merits of the matter would not be
within the realm of the Court at that stage.
The Court at that stage would not consider
any evidence or enter a disputed question
of fact or law. Relevant paragraphs thereof
are extracted below :
21. Order 7 Rule 11(d) of the Code
had limited application. It must be shown
that the suit is barred under any law. Such
a conclusion must be drawn from the
averments made in the plaint. Different
clauses in Order 7 Rule 11, in our opinion,
should not be mixed up. Whereas in a given
case, an application for rejection of the
plaint may be filed on more than one
ground specified in various sub-clauses
thereof, a clear finding to that effect must
be arrived at. What would be relevant for
invoking Clause (d) of Order 7 Rule 11 of
the Code are the averments made in the
plaint. For that purpose, there cannot be
any addition or subtraction. Absence of
jurisdiction on the part of a court can be
4 All. Abhay Kumar @ Dheeraj Ojha Vs. Rakesh Kumar Verma & Ors.
1271
invoked at different stages and under
different provisions of the Code. Order 7
Rule 11 of the Code is one, Order 14 Rule 2
is another.
22. For the purpose of invoking
Order 7 Rule 11(d) of the Code, no amount
of evidence can be looked into. The issues
on merit of the matter which may arise
between the parties would not be within the
realm of the court at that stage. All issues
shall not be the subject matter of an order
under the said provision.
23. The principles of res judicata,
when attracted, would bar another suit in
view of Section 12 of the Code. The
question involving a mixed question of law
and fact which may require not only
examination of the plaint but also other
evidence and the order passed in the earlier
suit may be taken up either as a
preliminary issue or at the final hearing,
but, the said question cannot be determined
at that stage.
24. It is one thing to say that the
averments made in the plaint on their face
discloses no cause of action, but it is
another thing to say that although the same
discloses a cause of action, the same is
barred by a law.
25. The decisions rendered by this
Court as also by various High Courts are
not uniform in this behalf. But, then the
broad principle which can be culled out
therefrom is that the court at that stage
would not consider any evidence or enter
into a disputed question of fact or law. In
the event, the jurisdiction of the court is
found to be barred by any law, meaning
thereby, the subject matter thereof, the
application for rejection of plaint should be
entertained." (emphasis supplied)

30. Hon'ble Supreme Court also
considered
the
question
whether
the
election of the returned candidate is
materially affected where, the improper
acceptance of the nomination is of the
returned candidate himself in the case of
Mairembam
Prithviraj
v.
Pukhrem
Sharatchandra Singh, (2017) 2 SCC 487

24. The judgment of this Court
in Durai
Muthuswami [Durai
Muthuswami v. N. Nachiappan, (1973) 2
SCC
45]
was
referred
to
in Jagjit
Singh v. Dharam
Pal
Singh [Jagjit
Singh v. Dharam Pal Singh, 1995 Supp (1)
SCC 422] , in which it was held as follows:
(Jagjit Singh case [Jagjit Singh v. Dharam
Pal Singh, 1995 Supp (1) SCC 422] SCC p.
429, para 21)
"21. The trial Judge has held that
since there is no averment in the petition
that the result of the election was materially
affected
by
improper
rejection
or
acceptance of votes, it is devoid of cause of
action. We are unable to agree that the
absence of such an averment in the facts of
this case is fatal. As pointed out by this
Court, there may be cases where the
obvious conclusion to be drawn from the
circumstances is that the result of the
election has been materially affected and
that Section 100(1)(d) of the Act is not
intended to provide a convenient technical
plea in a case where there can be no
dispute at all about the result of the
election being materially affected by the
alleged
infirmity.
(See: Durai
Muthuswami v. N.
Nachiappan [Durai
Muthuswami v. N. Nachiappan, (1973) 2
SCC 45]. In the present case, the appellant
in the election petition has stated that he
has lost by a margin of 80 votes only. From
the various averments in the election
petition it was evident that the number of
valid votes of the appellant which are
alleged to have been improperly rejected is
much more than 80. From the averments
contained in the election petition it is thus
1272 INDIAN LAW REPORTS ALLAHABAD SERIES
obvious if the appellant succeeds in
establishing his case as set out in the
election petition the result of this election,
insofar as it concerns the returned
candidate, would be materially affected."
25. It was held by this Court
in Vashist
Narain
Sharma v. Dev
Chandra [Vashist Narain Sharma v. Dev
Chandra, (1955) 1 SCR 509 : AIR 1954 SC
513] as under: (AIR pp. 515-16, para 9)
"9. The learned counsel for the
respondents concedes that the burden of
proving that the improper acceptance of a
nomination has materially affected the
result of the election lies upon the
petitioner but he argues that the question
can arise in one of three ways:
(1) where the candidate whose
nomination was improperly accepted had
secured less votes than the difference
between the returned candidate and the
candidate securing the next highest number
of votes,
(2) where the person referred to
above secured more votes, and
(3) where
the
person
whose
nomination has been improperly accepted
is the returned candidate himself.
It is agreed that in the first case the
result of the election is not materially
affected because if all the wasted votes are
added to the votes of the candidate
securing the highest votes, it will make no
difference to the result and the returned
candidate will retain the seat. In the other
two cases it is contended that the result is
materially affected. So far as the third case
is concerned it may be readily conceded
that such would be the conclusion. But we
are not prepared to hold that the mere fact
that the wasted votes are greater than the
margin of votes between the returned
candidate and the candidate securing the
next highest number of votes must lead to
the necessary inference that the result of
the election has been materially affected.
That is a matter which has to be proved
and the onus of proving it lies upon the
petitioner. It will not do merely to say that
all or a majority of the wasted votes might
have gone to the next highest candidate.
The casting of votes at an election depends
upon a variety of factors and it is not
possible for any one to predicate how many
or which proportion of the votes will go to
one or the other of the candidates. While it
must be recognised that the petitioner in
such a case is confronted with a difficult
situation, it is not possible to relieve him of
the duty imposed upon him by Section
100(1)(c) and hold without evidence that
the duty has been discharged. Should the
petitioner fail to adduce satisfactory
evidence to enable the Court to find in his
favour on this point, the inevitable result
would be that the Tribunal would not
interfere in his favour and would allow the
election to stand."
(emphasis supplied)
This
Court
in Kisan
Shankar
Kathore v. Arun Dattatray Sawant [Kisan
Shankar Kathore v. Arun Dattatray Sawant,
(2014) 14 SCC 162] dealt with a situation
similar to that of this case. In that case, the
election of the returned candidate was
successfully challenged on the ground of
non-disclosure of material information. The
appeal filed by the returned candidate was
dismissed by this Court by observing as
follows:
"43. ... Once it is found that it was
a case of improper acceptance, as there
was misinformation or suppression of
material information, one can state that
question of rejection in such a case was
only deferred to a later date. When the
Court gives such a finding, which would
have resulted in rejection, the effect would
be same, namely, such a candidate was not
entitled to contest and the election is void."
4 All. Abhay Kumar @ Dheeraj Ojha Vs. Rakesh Kumar Verma & Ors.
1273
26. Mere finding that there has
been an improper acceptance of the
nomination
is
not
sufficient
for
a
declaration that the election is void under
Section 100(1)(d). There has to be further
pleading and proof that the result of the
election of the returned candidate was
materially affected. But, there would be no
necessity of any proof in the event of the
nomination of a returned candidate being
declared
as
having
been
improperly
accepted, especially in a case where there
are only two candidates in the fray. If the
returned
candidate's
nomination
is
declared to have been improperly accepted
it would mean that he could not have
contested the election and that the result of
the election of the returned candidate was
materially affected need not be proved
further. We do not find substance in the
submission of Mr Giri that the judgment
in Durai
Muthuswami [Durai
Muthuswami v. N. Nachiappan, (1973) 2
SCC 45] is not applicable to the facts of
this case. The submission that Durai
Muthuswami [Durai
Muthuswami v. N.
Nachiappan, (1973) 2 SCC 45] is a case of
disqualification under Section 9-A of the
Act and, so, it is not applicable to the facts
of this case is also not correct. As stated
supra, the election petition in that case was
rejected on the ground of non-compliance
with Section 100(1)(d). The said judgment
squarely applies to this case on all fours.
We also do not find force in the
submission that the Act has to be strictly
construed and that the election cannot be
declared to be void under Section
100(1)(d) without pleading and proof that
the result of the election was materially
affected. There is no requirement to prove
that the result of the election of the
returned candidate is materially affected
once his nomination is declared to have
been improperly accepted.
31. In light of the above, this Court
is of the considered view that where the
election is challenged on the ground of
improper acceptance of nomination of the
returned candidate then there is no
requirement to further prove that the
election of the returned candidate is
materially affected. Even otherwise, in the
present case the election petition contains
sufficient
pleadings
stating
that
the
improper acceptance of the nomination of
the returned candidate has materially
affected the election. The grounds urged by
the respondent no.1 stating that there are no
pleadings in this regard, is not made out.
Relying on the judgement of the Hon'ble
Supreme Court in the case of Mairembam
Prithviraj v. Pukhrem Sharatchandra
Singh (supra), this Court is of the
considered opinion that the application
filed by the respondent no.1 under Order
VII Rule 11 of CPC is bereft of merits and
therefore rejected.

C. APPLICABILITY OF RULE
OF ESTOPPEL

32. It has been submitted on behalf
of respondent no.1 that the election
petitioner had not raised any objections at
the time of filing of nominations and is
therefore now estopped from raising the
plea in this regard in the present election
petition, and hence prayed that on this
ground alone the election petition deserves
to be dismissed. In this regard it is noticed
that Section 100 of the Act, 1951 clearly
provides the grounds on which the election
of a returned candidate can be challenged.
As per Section 100 (d)(i) of the Act, 1951
one of the grounds stated therein is
improper acceptance of any nomination.
The ground taken by the petitioner has been
prescribed statutorily and even if no
objections were raised by the election
1274 INDIAN LAW REPORTS ALLAHABAD SERIES
petitioner at this stage of filing/accepting of
nominations, he is at liberty to raise any
grounds for challenging of the election of
the returned candidate as provided for in
Section 100 of the Act of 1951. No
conditions have been imposed for invoking
the grounds of improper acceptance of
nomination as mentioned in Section 100 of
the Act, 1951 and therefore if no objection
was raised before the returning officer it
would still be open for the election
petitioner to challenge the election of the
returned candidate. Therefore, rule of
estoppel and acquiescence does not apply
to a challenge made to the election of the
returned candidate, as urged on behalf of
the respondent no.1, and therefore the
argument in this regard is misconceived
and accordingly rejected.

D. Civil Misc, Application No. 4
of 2022

(Under Section 81 read with
Section 86 of the Act, 1952)

33. Respondent no.1 has also
pressed Application No. 4 of 2022 filed
under Section 81 read with Section 86 of
the Act of 1951, for dismissal of the
election petition in limine. In the said
application a number of objections have
been raised on behalf of the respondent
no.1, but only a few of them were pressed
and accordingly this Court is proceeding to
consider and decide the objections pressed
by the learned Counsel for the respondent
no.1.

D1.
CERTAIN
PAGINATED
PAGES NOT ANNEXED WITH
THE ELECTION PETITION.

34.