# Dr. Lal Bahadur v. Ritesh Pandey

- **Citation:** (2021) 10 ILRA 653
- **Court:** High Court of Judicature at Allahabad
- **Decided:** 2021-10-25
- **Case number:** Election Petition No. 1 of 2019
- **Bench:** Vivek Chaudhary
- **Source:** https://unisonlegal.in/judgment/allahabad-high-court/dr-lal-bahadur-v-ritesh-pandey-46391
- **Pages:** 19

## Headnote

The Representation of the People Act,
1951 - Sections 861, 82 & 117 -
Application
filed
by
Petitioner
for
exempting from publishing notice in Hindi
daily Dainik Jagran-non compliance of
section 861, 82 or 117 of RP Act-liable to
be dismissed u/s 86 -Petitioner admittedly
not filed original election petition-copy
filed along with court fee is a true copy
attested-such declaration is made on each
and every page-cannot be said to be a
bonafide mistake.

W.P. dismissed. (E-9)

List of Cases cited:

1.Dr. Mohammad Ismail Faruqui Vs Shri Rajnath
Singh: Election Petition No.5 of 2014

## Text

_Characters 0–39,989 of 65,873. This is a partial read: ask again with offset=39989 for what follows._

10 All. Dr. Lal Bahadur Vs. Ritesh Pandey
653

14. This Court is thankful to both the
counsels to see that the matter is disposed
of.
----------
(2021)10ILR A653
ORIGINAL JURISDICTION
CIVIL SIDE
DATED: LUCKNOW 25.10.2021

BEFORE

THE HON'BLE VIVEK CHAUDHARY, J

Election Petition No. 1 of 2019

Dr. Lal Bahadur ...Petitioner
Versus
Ritesh Pandey ...Respondent

Counsel for the Petitioner:
Akhilesh
Kumar
Kalra,
Amit
Tripathi,
Asheesh
Agnihotri,
Avinash
Chandra,
Badrus Sahar, Kali Prasad Singh, Prashant
Kumar, Sarvesh Kumar Tiwari, Shakti
Vikram Srivastava

Counsel for the Respondent:
G.A.

The Representation of the People Act,
1951 - Sections 861, 82 & 117 -
Application
filed
by
Petitioner
for
exempting from publishing notice in Hindi
daily Dainik Jagran-non compliance of
section 861, 82 or 117 of RP Act-liable to
be dismissed u/s 86 -Petitioner admittedly
not filed original election petition-copy
filed along with court fee is a true copy
attested-such declaration is made on each
and every page-cannot be said to be a
bonafide mistake.

W.P. dismissed. (E-9)

List of Cases cited:

1.Dr. Mohammad Ismail Faruqui Vs Shri Rajnath
Singh: Election Petition No.5 of 2014

2. R.K. Roja Vs U.S. Rayudu & anr., (2016) 14
SCC 275
3. K. Venkateswara Rao & anr. Vs Bekkam
Narsimha Reddy & ors., AIR 1969 SC 872,

4. Hukumdev Narain Yadav Vs Lalit Narain Mishra
(1974) 2 SCC 133

5. G.Vs Sreerama Reddy & anr. Vs Returning
Officer & ors. (2009) 8 SCC 736

6. K. Venkateswara Rao & anr. Vs Bekkam
Narsimha Reddy & ors., AIR 1969 SC 872

7. Hukumdev Narain Yadav Vs Lalit Narain Mishra
(1974) 2 SCC 133

8. G.Vs Sreerama Reddy & anr. Vs Returning
Officer & ors. (2009) 8 SCC 736

9. Uday Shankar Triyar Vs Ram Kalewar Prasad
Singh & anr. (2006) 1 SCC 75;

10. Sheo Sadan Singh Vs Mohan Lal Gautam,
1969(1) SCC 408;

11. Mairembam Prithviraj alias Prithviraj Singh Vs
Pukhrem Sharatchandra Singh (2017) 2 SCC 487;
12. Ajay Maken Vs Adesh Kumar Gupta & anr.
(2013) 3 SCC 489;

13. U.S. Sasidharan Vs K. Karunakaran & anr.
(1989) 4 SCC 482; C.P. John Vs Babu M. Palissery
& ors. (2014) 10 SCC 547

14. Saritha S. Nair Vs Hibi Eden, 2020 SCC Online
SC 1006 (SLP (Civil) No.10678 of 2020 dated
9.12.2020)

15. F.A. Sapa & ors. Vs Singora & ors. (1991) 3
SCC 375

16. Abdulrasakh Vs K.P. Mohammed & ors. (2018)
5 SCC 59; Anil Vasudev Salgaonkar Vs Naresh

17. Kushali Shigaonkar (2009) 9 SCC 310 and Tej
Bahadur Vs Narendra Modi, AIROnline 2019ALL
2004

18. Uday Shankar Triyar Vs Ram Kalewar Prasad
Singh & anr. (2006) 1 SCC 75

(Delivered by Hon'ble Vivek
Chaudhary, J.)
654 INDIAN LAW REPORTS ALLAHABAD SERIES

(C.M.
Application
No.115252
of
2021-Application
for
exemption
from
publication of notice in Newspaper)

(C.M.
Application
No.118492
of
2021-Application for extension of time to
file reply to the application for exemption
from publication filed by petitioner)

(C.M.
Application
No.118015
of
2021-Reply/Objection
to
aforesaid
application no. 11252 of 2021)

1. C.M. Application No.115252 of
2021 is filed by the petitioner praying that
he may be exempted from publishing
notice in Hindi daily Dainik Jagran,
Ambedkar Nagar Edition, as was directed
by the Court by it's orders dated 18.7.2019
and 23.9.2019.

2. Against the aforesaid application,
objections
are
filed
on
behalf
of
respondent, which bears C.M. Application
No.118015 of 2021 and an Application for
condoning delay in filing objections is
C.M. Application no.118492 of 2021.

3. I have heard the petitioner, who
appears in person, and Sri Sudeep Seth,
learned Senior Advocate, assisted by Sri
Sarvesh
Kumar
Tiwari,
Advocate,
appearing for the respondent.

4. The facts with regard to publication
of notice in newspaper are, that, notices on
the election petition were issued by orderdated 18.7.2019. The Court directed that
notices shall be issued by ordinary post,
registered A.D. and shall also be published
simultaneously in a newspaper having wide
circulation in the area to be selected by the
Registry of the Court. The petitioner
deposited an amount of Rs.250/- on
22.07.2019, as required under Rule 6(b) of
Chapter XV-A of the Allahabad High
Court Rules, 1952 (for short ''the High
Court Rules'). The Senior Registrar of this
Court by order-dated 23.7.2019 permitted
the publication in Hindi daily Dainik
Jagran widely circulated in the area.
Thereafter, office by its report-dated
4.9.2019
reported
that
notices
were
provided to the petitioner for publication in
Hindi daily Dainik Jagran. Notices were
also sent to the respondent by other modes
as directed by the court, which stand served
upon
the
respondent.
However,
the
petitioner has returned the notice for
publication
through
his
letter
dated
8.8.2019, stating his inability to get the
notice published in local Dainik Jagran,
with request to the office to get the same
published. The report also notes that a letter
is
sent
to
the
Editor/Manager,
Advertisement, Hindi daily newspaper
''Dainik
Jagran'
for
providing
quotation/charges for publication of notice
and its reply is still awaited. The matter
was placed before the Court; whereon the
Court considered the office report dated
4.9.2019 and directed the matter to be
placed on 23.9.2019. On 23.9.2019, the
Court found that quotation is received from
the Manager (Marketing), Dainik Jagran
and directed that notice be published in
newspaper as per order of the Senior
Registrar on deposit of necessary charges
and directed the case to be listed on
31.10.2019.
On
30.10.2019,
office
submitted a report that ''in compliance of
Hon. Court order dated 23.9.2019, a letter
was sent to the petitioner but petitioner has
not deposited the necessary charges for
publication of notice, hence notice could
not be published in the news paper'.
Thereafter the matter came up before the
Court on 31.10.2019. On the said date, the
petitioner appeared but the case was
adjourned on the illness slip of learned
counsel for respondent. On the dates fixed
thereafter,
learned
counsel
for
the
10 All. Dr. Lal Bahadur Vs. Ritesh Pandey
655
respondent took time for filing the written
statement or otherwise filed adjournment
applications. The case was also delayed on
certain dates due to COVID pandemic
situation. It was taken up on 6.9.2021 and
an oral objection was raised by the counsel
for the respondent that despite order of this
court dated 23.9.2021 petitioner has not
deposited the money for publication of
notice in newspaper. On the said objection
petitioner took two days time for filing
appropriate application.

5. In furtherance of the said order,
petitioner on 8.9.2021 filed the present
application for exemption from publication
of notice. Petitioner in Para-5 of the
application has disclosed the material facts
with regard to non-deposit of money by
him. It states, that, the petitioner had
deposited the initial amount of Rs.250/- for
publication of notice as per Rule 6(b) of
Chapter XV-A of the High Court Rules.
The said notice was to be published
through the Senior Registrar, but the
concerned
office
gave
notice
for
publication to the petitioner, which was
duly received by him on 27.09.2019. The
petitioner
ignored
the
irregularity
committed by the office and approached
the Dainik Jagran, Ambedkar Nagar Office
on 3.8.2019 for publication. Despite the
fact that he fulfilled all the formalities
notice was not published either on 4th or
5th of August 2019, and was returned to the
petitioner on 6.8.2019 by Dainik Jagran,
Ambedkar Nagar Office. In the said
background, petitioner returned the said
notice along with covering letter to the
Deputy Registrar, High Court, Lucknow by
registered post dated 8.8.2019. Thereafter,
on 11.9.2019, the sole respondent had put
in appearance through counsel. Again, the
court by order-dated 23.9.2019 directed the
office to take steps for publication of
notice. The Senior Registrar on 28.09.2019
obtained a quotation of Rs. 23,717/- from
Dainik Jagran, Lucknow instead of Dainik
Jagran,
Ambedkar
Nagar.
Since
the
quotation was wrongly obtained from
Dainik Jagran, Lucknow office, hence, the
petitioner did not deposit Rs.23,717/- in the
Registry. Since the sole respondent had
already appeared in the matter and filed
written statement along with an application
for condoning the delay, hence, the
objection raised by the respondent is
unwarranted and is only for delaying the
proceedings. In the aforesaid background,
the petitioner should be exempted from
depositing further cost for publication of
notice.

6. During the course of argument, the
petitioner again referred to the contents of
his application and submitted that since
service upon the sole respondent has
already taken place, there is no need for
publication of notice. He further submits
that since the Senior Registrar had wrongly
taken the quotation from Dainik Jagran,
Lucknow office, therefore also, he did not
deposit the money. He fairly admitted that
he never moved any application before the
Senior Registrar or before the Court
objecting to the amount of quotation or
office from where quotation was taken. His
submission
is
that
in
the
given
circumstances, petitioner is not required to
deposit money, as service upon respondent
has already taken place, and objection
raised by the respondent is only to delay
the proceedings.

7. Sri Sudeep Seth, learned Senior
Advocate, appearing for the respondent,
submits that the Court had repeatedly asked
the petitioner to publish the notice in the
news paper and if he had any objection
with regard to the amount or any other
656 INDIAN LAW REPORTS ALLAHABAD SERIES
issue, the only course open for the
petitioner was to move an appropriate
application, either before the Court or
before the Senior Registrar. He never
moved any such application either before
the Court or before the Senior Registrar.
Therefore, he has knowingly and willingly
failed to comply with the direction of the
Court. The objection raised now by the
petitioner with regard to amount in
quotation is an afterthought, only to cover
up his failure to comply with the direction
of this Court. The law with regard to
requirement of publication of notice is
settled by number of judgments of the
Supreme Court and this Court. Reliance is
placed upon the judgment of this Court
dated 17.7.2015 in the case of Dr.
Mohammad Ismail Faruqui vs. Shri
Rajnath Singh: Election Petition No.5 of
2014.

8. I have considered the submissions
made by the parties. In case of Dr.
Mohammad Ismail Faruqui also, the
Court directed for service of notice by
other modes as well as by publication in a
newspaper. The petitioner in the said case
took steps for service through ordinary
post as well as by registered post. He was
informed the cost of publication in
chosen newspaper to be Rs. 9024/-. The
petitioner moved an application dated
8.4.2015, supported by an affidavit, with
the prayer that publication of notice in the
news paper may be dispensed with, on
the ground that it was not possible for
him to arrange such huge amount of
money. In the said case also a ground was
taken that the respondent otherwise also
stands served with the notice sent by
registered post AD and, thus, there is no
necessity of publication. This Court after
considering the submissions and the
earlier settled law held:

"The submissions advanced by
the petitioner and learned counsel for the
contesting
respondent
have
been
considered by the Court.

The first submission of the
petitioner that as the dispute is between the
petitioner and the sole respondent, the
Court should dispense with the publication
of the notice in the newspaper since the
respondent is represented by a counsel
cannot be accepted.

As
noticed
above,
Rule
3
contained in Chapter XV-A of the Rules
provides that every election petition shall
be presented to the Registrar. Rule 5
provides that the Bench may direct issue of
notice to the respondent. Such notice shall
also direct that if the respondent wishes to
put up a defence he shall file his written
statement together with a list of all
documents, whether in his possession or
power or not, upon which he intends to rely
as evidence in support of his defence on or
before the date fixed; and further, that in
default of appearance being entered on or
before the date fixed in the notice the
election petition may be heard and
determined in his absence. Sub-rule (a) of
Rule 6 provides that notice for the
respondent shall be issued by ordinary
process and simultaneously by registered
post. Sub-rule (b) of Rule 6, however,
provides that the notice of the election
petition shall also be simultaneously
published in a newspaper selected by the
Registrar. The Registrar had selected a
newspaper and the petitioner was duly
informed of this fact and the amount that he
was required to deposit for publication of
the notice. It is at that stage that the
petitioner
moved
an
application
for
dispensation of the publication of the notice
in the newspaper.

Dispute in an election petition is
not restricted to the petitioner and the
10 All. Dr. Lal Bahadur Vs. Ritesh Pandey
657
respondent alone but involves the entire
constituency and every interested person
should have notice of the presentation of
the election petition. This is what was
observed by the Supreme Court in Inamati
Mallappa Basappa vs. Desai Basavaraj
Ayyappa and others, AIR 1958 SC 698
(supra). The Supreme Court considered
this issue in the light of the unamended
provisions where the election petition was
required to be presented before the
Election Commission. The Supreme Court,
after placing reliance upon its earlier
decisions, observed that by publication of
notice in the official gazette not only the
respondents to the petition get notice but
the entire constituency as a whole receives
such a notice so that each and every voter
of
the
constituency
and
all
parties
interested become duly aware of the
presentation of the election petition. The
whole constituency is thus alive to the fact
that the result of the election duly declared
has been questioned on various grounds
with the likely result that the election of all
or any of the returned candidates may be
declared void and the petitioner or any
other candidate declared duly elected in
place of the returned candidate. The
constituency, therefore, has a vital interest
in the proceedings before the Tribunal
which have a characteristic of their own
different
from
the
ordinary
civil
proceedings. Paragraphs 10 and 11 of the
judgment are reproduced below:

"10. It is necessary at the outset,
therefore, to understand the nature and
scope of an Election Petition. As has been
observed by us in the judgment just
delivered in Kamaraja Thevar v. Kunju
Thevar, Civil Appeals No.763 & 764 of
1957 and Civil Appeal No.48 of 1958 :
(A.I.R. 1958 S.C. 687) (A):-

"An election contest is not an
action at law or a suit in equity but is a
purely statutory proceeding unknown to the
common law and that the court possesses
no common law power."

......................

"An election petition is not a
matter in which the only persons interested
are candidates who strove against each
other at the elections. The public also are
substantially interested in it and this is not
merely in the sense that an election has
news value. An election is an essential part
of the democratic process."

........................

"An election petition is not a suit
between two persons, but is a proceeding in
which the constituency itself is the
principal party interested."

.........................

11.
An
Election
Petition
presented to the Election Commission is
scrutinised by it and if the Election
Commission does not dismiss it for want of
compliance with the provisions of Section
81, Section 82 or Section 117 of the Act, it
accepts the same and causes a copy
thereof to be published in the official
gazette and a copy thereof to be served by
post on each respondent. The respondents
to the petition not only get notice of the
same but the constituency as a whole
receives such notice by publication thereof
in the official gazette so that each and
every voter of the constituency and all
parties interested become duly aware of
the fact of such Election Petition having
been presented. A copy of the Election
Petition published in the official gazette
would also show to all of them that the
petitioner in a particular Election Petition,
in addition to claiming a declaration that
the election of all or any of the returned
candidates is void, has also claimed a
further declaration that he himself or any
other candidate has been duly elected. The
whole constituency is thus alive to the fact
658 INDIAN LAW REPORTS ALLAHABAD SERIES
that the result of the election duly declared
is
questioned
on
various
grounds
permitted by law with the likely result that
the election of all or any of the returned
candidates may be declared void and the
petitioner or any other candidate may be
declared duly elected, in place and stead
of
the
returned
candidate.
The
constituency may have an interest in either
maintaining the status quo or if perchance
the election of the returned candidate is set
aside, in seeing that some other deserving
candidate is declared elected in his place
and stead and not necessarily the petitioner
or any other candidate sponsored by him
whose election could be challenged on any
of the grounds mentioned in Section100 (1).
It is this interest of the constituency as a
whole which invests the proceedings
before the Election Tribunals with a
characteristic
of
their
own
and
differentiates them from ordinary civil
proceedings. ................."

(emphasis supplied)

This view was reiterated by the
Supreme Court in Dr. P. Nalla Thampy
Thera vs. B.L. Shanker and others, AIR
1958 SC 135 (supra) and the contention
that the view taken by the Supreme Court in
Inamati Mallappa Basappa (supra) that
the election dispute involves the entire
constituency was not correct was not
accepted. The relevant paragraph 22 of the
decision in Dr. P. Nalla (supra) is
reproduced below :

"22. The ratio of this decision as
also the observations in Basappa's case
(AIR 1958 SC 698), the appellant
contends are, wrong in view of the earlier
decisions of this Court taking the view that
an election dispute involves the entire
constituency because of the paramount
necessity of having purity of an election in
a democracy safeguarded. We do not think
the
appellant's
contention
can
be
accepted. The earlier decisions of this
Court do not in any way militate against
the view taken in Dhoom Singh's case
(supra) and the observations made in
Basappas's case (supra). Those decisions
were not concerned with the question as to
whether an election petition can be
dismissed for default. The consensus of
judicial opinion in this Court has always
been that the law in regard to elections has
to be strictly applied and to the extent
provision has not been made, the Code
wold be applicable. About eight years back
this Court had occasion to point out that if
the intention of the legislature was that a
case of this type should also be covered by
special provision, this intention was not
carried out and there was a lacuna in the
Act. We find that even earlier in Sheodhan
Singh v. Mohan Lal Gautam, (1969) 3 SCR
417 at p. 421: (AIR 1969 SC 1024 at p.
1026), this Court had stated:

"From the above provisions it is
seen that in an election petition, the contest
is really between the constituency on the
one side and the person or persons
complained of on the other. Once the
machinery of the Act is moved by a
candidate or an elector, the carriage of the
case does not entirely rest with the
petitioner. The reason for the elaborate
provisions noticed by us earlier is to ensure
to the extent possible that the persons who
offend the election law are not allowed to
avoid the consequences of their misdeeds"

(emphasis supplied)

In
view
of
the
aforesaid
observations made by the Supreme Court in
Inamati Mallappa Basappa (supra) and
Dr. P. Nalla (supra) that dispute in an
election petition is not centered around
merely between the petitioner and the
respondents but the entire constituency, the
publication of the notice in the newspaper
is necessary. The contention of the
10 All. Dr. Lal Bahadur Vs. Ritesh Pandey
659
petitioner that the publication of the notice
in the newspaper should be dispensed with
since the respondent has been served
cannot, therefore, be accepted.

The second contention of the
petitioner is that since the petitioner does
not have the means to pay the cost for
publication in the newspaper selected by
the Registrar of the Court, the Court can
order for deferred payment as was done in
Election Petition No.4 of 2014.

It is not possible to accept this
contention of the petitioner. Rule 6(b), clearly
requires notices of the election petition to be
simultaneously published in the newspaper
selected by the Registrar. Rule 6(c) also
requires that notices, process fee, charges
and a sum of Rs.250/- as an initial deposit on
account of cost of publication in the
newspaper shall be supplied by the petitioner
within seven days of the order directing
notice to issue. Even this amount was not
deposited by the petitioner. Rule 6(d) also
requires that where the cost of publication in
the newspaper exceeds Rs.50/-, the Registrar
shall call upon the petitioner to deposit the
excess amount in the Court within the time
fixed by him. The Registrar had called upon
the petitioner to deposit Rs.9024/-.

As noticed above, while dealing
with the first contention of the petitioner, it
has been found that publication in the
newspaper is to ensure that the entire
constituency is made aware of the pendency
of the election petition. In this view of the
matter deferred payment would not serve any
purpose. The submission of the petitioner that
even the amount of Rs.250/- which is
required to be deposited in terms of Rule 6(c)
is on higher side, cannot also be accepted as
this is certainly less than the amount that is
actually required for publication of the
notice.

This
election
petition
was
presented before the Registrar of the Court
on 27 June 2014. Notice was issued on 6
February 2015. The Court has to be
satisfied that the grounds mentioned by the
petitioner in the application filed for
dispensing the publication of the notice in
the newspaper are bona fide grounds and
the intention behind moving of the
application is not to merely avoid the
deposit of the amount for publication in the
newspaper. Rule 6(c) provides that notices,
process fee, charges and a sum of Rs.250/-
as an initial deposit on account of the cost
of publication in a newspaper shall be
supplied by the petitioner within seven days
of the order directing notice to issue. Rule
6(c) further provides that in default, the
election petition shall be laid before the
Bench for orders and the Bench may reject
the election petition unless for sufficient
cause it grants further time. The Court is of
the opinion that sufficient cause has neither
been placed nor does it exist for dispensing
with the publication of the notice in the
newspaper
and
that
by
filing
the
application,
the
petitioner
is
merely
avoiding the deposit of amount for
publication in the newspaper.

The application filed by the
petitioner
for
dispensation
with
the
publication of the notice in the newspaper
is, therefore, without any substance and
deserves to be rejected.

Thus, for all the reasons stated
above, Civil Misc. Application No.32181 of
2015 filed by the petitioner for dispensing
with the publication of the notice in the
newspaper is rejected.

As a result of the rejection of the
application, the election petition stands
dismissed."

9. The aforesaid case squarely covers
the
present
case.
The
necessity
of
publication is duly considered by the
Supreme Court and is reiterated by this
660 INDIAN LAW REPORTS ALLAHABAD SERIES
Court. The failure in publication goes to the
root of the matter.

10. In the present case, the petitioner
has failed to take steps for publication of
notice. The first ground taken by the
petitioner for seeking exemption from
publication of notice is that the respondent
stands served. The said aspect is fully
covered by the judgment in the case of Dr.
Mohammad Ismail Faruqui (supra), as
discussed above.

11. So far as the next submission of
the petitioner, that, the Senior Registrar had
taken the quotation from Dainik Jagran,
Lucknow office instead of Dainik Jagran,
Ambedkar Nagar office, is concerned, in
case the petitioner had any such objection,
he ought to have raised the same at
appropriate
time
before
the
Senior
Registrar
or
moved
an
appropriate
application before the Court. He failed to
take any such steps. Even now, when it was
pointed out by
the
respondent,
the
petitioner has only moved an application
for exemption from publication. There is no
prayer made by the petitioner that he is
ready and willing to deposit the money for
publication. Even during the course of
arguments, the petitioner, submitting his
case in person, did not reply to the query of
the Court, whether he is now willing to
deposit the money for publication of notice.
His only reply has been that now there is no
need for publication of notice.

12.

In
the
given
facts
and
circumstances of the case, I find that the
petitioner has failed to comply with the
orders dated 18.7.2019 and 23.9.2019 of
this Court for publication of notice. He has
not sought any condonation of delay in
complying with the said orders of the court
or shown willingness to make publication
even now. Rather he has only sought an
exemption from publication of notice. The
said exemption cannot be granted by this
Court as is already settled by this Court in
the case of Dr. Mohammad Ismail
Faruqui (supra) and judgments of the
Supreme Court referred to in the said case.

13. Therefore, the application for
exemption is liable to be rejected and is
hereby rejected.

14. In view thereof, the other two
applications also stand disposed of.

(C.M. Application No.118050 of
2021-Application for extension of time to
file an application under Order VII Rule 11
of Code of Civil Procedure, 1908 on behalf
of the respondent/returned candidate)

(C.M. Application No.118019 of
2021-Application under Order VII Rule 11
of Code of Civil Procedure, 1908 on behalf
of the respondent/returned candidate)

15. The respondent has filed these
two applications. The first application is for
condonation of delay and the second is an
application under Order VII Rule 11 of
CPC. The facts with regard to delay are that
on 6.9.2021, when before the Court
respondent orally raised his objections that
petitioner has failed to make publication of
notice in the news paper and other
preliminary objections for rejecting the
election petition, petitioner prayed for two
days' time to file appropriate application for
the publication purposes. While granting
the said time to the petitioner, the Court
also granted two days' time to the
respondent to file reply to such an
application filed by the petitioner and also
permitted respondent to file his preliminary
objections within two days. Permission was
also granted to the petitioner to file reply to
10 All. Dr. Lal Bahadur Vs. Ritesh Pandey
661
such preliminary objections. The case was
fixed for 13.9.2021. On that date, Court
again permitted all applications to be filed
by the next day and 15.9.2021 was fixed in
the case. The applications were duly filed
on 14.9.2021.

16. Sri Sudeep Seth, learned Senior
Advocate, on the above facts submits; (i)
there is no delay in filing of the
applications as the applications are filed
within the time extended by the Court by
order dated 13.9.2021; (ii) there is no
period of limitation in filing the application
under Order VII Rule 11 of CPC; (iii) even
presuming there is delay of a day or two,
the same may be condoned as the same is
not intentional. He submits that the Photo
Affidavit Centre operated by the High
Court was opened for a limited period and
the Oath Commissioner was not available
and hence there was delay in filing the
applications.

17. Elaborating his argument, Mr.
Seth submits, that, the law with regard to
Order VII Rule 11 of CPC is settled since
long and an application under Order VII
Rule 11 of CPC can be filed at any stage of
the proceedings. Once such an application
is filed, the Court is bound to dispose of the
same before proceeding with the trial.
Therefore, the fact that respondent has
already filed his written statement along
with a delay condonation application would
not in any manner impact his right to file an
application under Order VII Rule 11 of
CPC. Reliance is placed upon the judgment
of the Supreme Court in R.K. Roja vs. U.S.
Rayudu and another, (2016) 14 SCC 275.

18. On the other hand, the petitioner
strongly objects to the delay and submits
that the election laws are held to be strict in
nature and the respondent should not be
granted any relaxation. The time initially
given by the court was two days and any
objections could only be filed within the
said two days only. The Limitation Act is
not applicable and thus the application for
condonation of delay, filed under Section 5
of the same, is also not maintainable. The
petitioner also submits that since the
respondent has already filed his written
statement along with a delay condonation
application, therefore, now the application
under Order VII Rule 11 of CPC cannot be
filed. In support of his submissions
petitioner has relied upon K. Venkateswara
Rao and another vs. Bekkam Narsimha
Reddy and others, AIR 1969 SC 872,
Hukumdev Narain Yadav vs. Lalit Narain
Mishra (1974) 2 SCC 133 and G.V.
Sreerama
Reddy
and
another
vs.
Returning Officer and others (2009) 8
SCC 736.

19. In the case of R.K. Roja (supra),
also arising from an election petition,
Supreme Court considered the manner and
stage of filing an application under Order
VII Rule 11 CPC. Relevant portion of the
said judgment reads:

"2. ...........On receipt of notice in
the election petition, the appellant filed
Annexure P-4, application for rejection of
the petition, under Order 7 Rule 11 CPC by
way of a counter-affidavit. It appears that
the Court declined to consider the same on
the ground that there was no formal
application and hence proceeded with the
trial. At that stage, the appellant filed
Annexure P-5, formal application for
rejection of the election petition on the
ground that the election petition did not
disclose
any
cause
of
action.
That
application as per the impugned order
dated 27-4-2016 was posted along with the
main petition, and thus, the appeal.
662 INDIAN LAW REPORTS ALLAHABAD SERIES

3. The High Court has taken the
view that the same "was not filed at the
earliest opportunity" and that the appellant
was not diligent in prosecuting the
application. Therefore, the Court took the
view that "... this application filed by the
first respondent shall be decided at the time
of final hearing ...".

4. We are afraid that the stand
taken by the High Court in the impugned
order
cannot
be
appreciated.
An
application under Order 7 Rule 11 CPC
can be filed at any stage, as held by this
Court in Sopan Sukhdeo Sable v. Charity
Commr. [Sopan Sukhdeo Sable v. Charity
Commr., (2004) 3 SCC 137] : (SCC p. 146,
para 10)

"10. ... The trial court can
exercise the power at any stage of the suit -
before registering the plaint or after
issuing summons to the defendant at any
time before the conclusion of the trial."

The only restriction is that the
consideration
of
the
application
for
rejection should not be on the basis of the
allegations made by the defendant in his
written statement or on the basis of the
allegations in the application for rejection
of the plaint. The court has to consider only
the plaint as a whole, and in case, the
entire plaint comes under the situations
covered by Order 7 Rules 11(a) to (f) CPC,
the same has to be rejected.

5. Once an application is filed
under Order 7 Rule 11 CPC, the court has
to dispose of the same before proceeding
with the trial. There is no point or sense in
proceeding with the trial of the case, in
case the plaint (election petition in the
present case) is only to be rejected at the
threshold."

20. The law thus is settled that an
application under Order VII Rule 11 can be
filed at any stage of the proceedings. There
is no limitation applicable in filing of an
application under the said rule. The
defendant can also file such an application
even after filing of the written statement.
So far as the judgments of the Supreme
Court relied upon by the petitioner in the
case of K. Venkateswara Rao and another
vs. Bekkam Narsimha Reddy and others,
AIR 1969 SC 872, wherein the Supreme
Court has held in para-14: ''in our opinion
however the Limitation Act cannot apply to
proceedings like an election petition
inasmuch as the Representation of the
People Act is a complete and self-contained
code which does not admit of the
introduction of the principles or the
provisions of law contained in the Indian
Limitation Act.' and Hukumdev Narain
Yadav vs. Lalit Narain Mishra (1974) 2
SCC 133, in Para-25 of which the Supreme
Court again held that ''the provisions of
Section 5 of the Limitation Act do not
govern the filing of election petitions or
their trial and in this view, it is necessary
to consider whether there are any merits in
the application for condonation of delay',
both of which are again followed by the
Supreme Court in G.V. Sreerama Reddy
and another vs. Returning Officer and
others (2009) 8 SCC 736 are concerned,
suffice is to say that since the law is long
settled and again reiterated in R. K. Roja
(supra) that there is no time limit provided
for filing an application under Order VII
Rule 11 of the CPC and the court is bound
to decide the same before proceeding with
the trial of the case, thus, there is no force
in the submission of the petitioner that the
application of respondent under Order VII
Rule 11 CPC should be rejected on ground
of delay. There was no need for the
respondent to file the delay condonation
application along with his application filed
under Order VII Rule 11 CPC. Even
otherwise the applications are filed within
10 All. Dr. Lal Bahadur Vs. Ritesh Pandey
663
time finally allowed by the court by order
dated 13.9.2021 and thus, on facts also,
there is no delay in filing the applications
by the respondent. Accordingly, C.M.
Application No.118050 of 2021 stands
disposed of.

21. In view of above, this Court is
bound to consider the application filed by
the respondent under Order VII Rule 11 of
CPC on its merits.

22. The respondent in his application
under Order VII Rule 11 of CPC has taken
the following objections:

(i) The election petition lacks any
specific paragraph stating when and how the
cause of action arose and more particularly,
the petitioner has no cause of action against
the respondent;

(ii) The petition is neither signed
nor verified in the manner prescribed in
Order VI Rule 15 of C.P.C.

(iii) There are allegations of corrupt
practice in Para 6(32) and Ground 7(R) of the
election petition. However, there is no
affidavit filed by the petitioner in support of
the election petition, as is mandatorily
required by Section 83 of Representation of
People Act (for short ''the RP Act').

(iv) There is no original petition
filed before this Court and the election
petition filed by the petitioner, on which he
has affixed the Court fee and office has
submitted its report, is only a true copy, so
attested by the petitioner.

(v) The petitioner has failed to
publish notice in the newspaper as is
mandatorily required under law and hence,
the petition is barred by law and is not
maintainable.
(This
issue
is
already
considered
above
while
deciding
the
application filed by the petitioner for
exemption from making publication)

23. On the aforesaid grounds, learned
counsel for the respondent submits that
election petition is liable to be dismissed at
this stage only. The petitioner has refused to
file any reply to the application filed under
Order VII Rule 11 of CPC submitting that he
would only make oral submission against the
same.

24. On ground (i), submission of
learned counsel for the respondent is that
there is no paragraph in the entire election
petition specifying when the cause of
action arose to the petitioner to file the
petition. It was incumbent upon the
petitioner to put such a specific paragraph
in the petition. In reply, petitioner submits
that though technically such a specific
paragraph may be missing, but a reading of
the entire election petition shows that cause
of action arose when his nomination was
illegally rejected and when election was
held and result was declared without
permitting him to contest the election. The
said facts are narrated at length in the
election petition. To understand the cause
of action entire petition is to be taken into
consideration and the argument of the
counsel for the respondent, that court
should find one paragraph in the petition
with regard to cause of action and ignore
the pleadings in their entirety, is not
sustainable in law. I do not find force in the
submission of the respondent with regard to
cause of action. To find out the cause of
action pleadings of the petitioner in their
entirety are to be considered. There is no
such law that requires that the petition
should have a specific paragraph stating
specifically the dates on which cause of
action accrued to the petitioner. For the
said purposes, the petition in its entirety has
to be read. A reading of the election
petition shows that there are sufficient
pleadings detailing cause of action to the
664 INDIAN LAW REPORTS ALLAHABAD SERIES
petitioner for filing the election petition and
the dates when the cause of action accrued
to the petitioner. The said submission of the
respondent is rejected.

25. Ground (ii) raised by learned
counsel for the respondent is that the
verification made by the petitioner is in
violation of provision of Order VI Rule 15 of
CPC. It is submitted by him that verification
is neither made at the foot of the plaint, but is
made on a separate sheet, nor it is made
paragraph-wise, as prescribed under Order VI
Rule 15 of CPC, therefore, the same is in
violation of Section 83(1)(c) of the RP Act.
As per the respondent, under Order VI Rule
15(2) of CPC, the verification shall be by
reference to numbered paragraphs of the
pleadings, which must be verified either on
personal knowledge or upon information
received or believed to be true. In the present
case, verification states that; "contents made
in material facts as well as grounds of the
present election petition are true to me in my
personal knowledge and nothing material
herein has been concealed and no part of it is
false". Reliance is also placed upon Section
83(1)(c) of the RP Act, which reads as
follows:

"83(1). An election petition-

(c) shall be signed by the
petitioner and 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 practice, the
petition shall also be accompanied by an
affidavit in the prescribed form in support
of the allegation of such corrupt practice
and the particulars thereof]"

26. Opposing the same, petitioner
submits that Section 86(1) of the RP Act
provides that High Court shall dismiss an
election petition that does not comply with
the provisions of Sections 81, 82 or 117 of
the RP Act. It is not provided that violation
of Section 83 would also result in outright
dismissal of an election petition.