# Prakash Bajaj v. Sri Arun Singh & Ors - **Citation:** (2022) 7 ILRA 225 - **Court:** High Court of Judicature at Allahabad - **Decided:** 2022-07-06 - **Case number:** Election Petition No. 1 of 2020 - **Bench:** Jaspreet Singh - **Source:** https://unisonlegal.in/judgment/allahabad-high-court/prakash-bajaj-v-sri-arun-singh-ors-48881 - **Pages:** 50 ## Headnote (A) Election Law - The Representation of People Act, 1951(RPA ) - Sections 33 , 36 , 79 , 79(b) , 81 , 82 , 83 , 86 , 100(c) , 100(d)(i) , 123 & 152 - The Conduct of Election Rules, 1961 - Rule 4, 4-A , 94-A - Code of Civil Procedure ,1908 - Order VII, Rule 11 CPC - Rejection of Plaint , Order 6 Rule 16 CPC - Striking out pleadings - "candidate" - distinction between material particulars and cause of action - litigant not entitled to create an illusion of a cause of action by resorting to clever drafting - cause of action must be clearly stated with material particulars.(Para -179 ) Biennial elections of Members of Council of State - ground of challenge - results of election - illegal rejection of nomination of the petitioner - illegal acceptance of nomination of the returned candidate - under Order VII, Rule 11 CPC - under Section 81 read with Sections 83 and 86 of RPA . (Para -173) (B) Civil Law - Code of Civil Procedure ,1908 - Dismissal of petition under Order VII Rule 11 CPC read with Section 33 of RPA - petitioner not duly nominated candidate - nomination did not have requisite number of valid proposers - "misnomer" - giving an incorrect or wrong name to a person even in a legal document - held - election petition cannot be dismissed at this stage on the ground of incorrect mention of name of one proposer - in order to ascertain the proper and full effect of the proviso appended to Section 33(4) of RPA and whether it can save the petition would require evidence - cannot be a ground to dismiss the petition at this stage in exercise of powers under Order VII Rule 11 CPC. (Para - 95,119) (C) Election Law - The Representation of People Act, 1951 - Dismissal of petition - Section 123 -'corrupt practice' - issue of corrupt practice requires evidence to be established - cannot be adjudicated at preliminary stage without the written statement, issues and evidence - lacks material particulars regarding allegations of corrupt practice - want of Affidavit in Form-25 in compliance of Section 83(1) of RPA - held - no merit to treat the averments in the petition to be allegations of corrupt practice. (Para -126,128) (D) Election Law- The Representation of People Act, 1951 - Dismissal of petition - want of material particulars, cause of action - want of filing a revised/fresh affidavit in Form-26 in compliance of Sections 33, 83 of RPA read with Rule 4-A of Rules of 1961 - held - 226 INDIAN LAW REPORTS ALLAHABAD SERIES Conspicuous absence of material facts in respect of the cause of action relating to the fact of filing of a valid affidavit in Form-26 - revised affidavit annexed to election petition not as per norms - initial affidavit defective which rendered the nomination of the petitioner invalid. (Para - 180,181) HELD:- Election petitioner not being a duly nominated candidate is not entitled to maintain the election petition. Election petition dismissed in exercise of powers under Order VII Rule 11 CPC.(Para - 182) Election petition dismissed. (E-7) List of Cases cited:- ## Text _Characters 0–39,942 of 169,063. This is a partial read: ask again with offset=39942 for what follows._ 7 All. Prakash Bajaj Vs. Sri Arun Singh & Ors. 225 original complainant. The default sentence would be six month without remission and will run after completion of eight years of incarceration. The accused is in jail since long. At least he has suffered for eight years imprisonment and must have repented to his deed which was out of anger. 23. Appeal is partly allowed. Record and proceedings be sent back to the Court below forthwith. 24. This Court is thankful to learned Advocates for ably assisting the Court. ---------- (2022)07ILR A225 ORIGINAL JURISDICTION CIVIL SIDE DATED: LUCKNOW 06.07.2022 BEFORE THE HON'BLE JASPREET SINGH, J. Election Petition No. 1 of 2020 Prakash Bajaj ...Petitioner Versus Sri Arun Singh & Ors. ...Respondents Counsel for the Petitioner: In Person, Jitendra Saxena, Narendra Kumar Pandey, Vivek Kumar Counsel for the Respondents: Anurag Kumar Singh, Gaurav Mehrotra, H.P. Singh, Kuldeep Vidyarthi, Sunil Chaudhary, Surya Prakash Singh, Vinod Kumar Shukla (A) Election Law - The Representation of People Act, 1951(RPA ) - Sections 33 , 36 , 79 , 79(b) , 81 , 82 , 83 , 86 , 100(c) , 100(d)(i) , 123 & 152 - The Conduct of Election Rules, 1961 - Rule 4, 4-A , 94-A - Code of Civil Procedure ,1908 - Order VII, Rule 11 CPC - Rejection of Plaint , Order 6 Rule 16 CPC - Striking out pleadings - "candidate" - distinction between material particulars and cause of action - litigant not entitled to create an illusion of a cause of action by resorting to clever drafting - cause of action must be clearly stated with material particulars.(Para -179 ) Biennial elections of Members of Council of State - ground of challenge - results of election - illegal rejection of nomination of the petitioner - illegal acceptance of nomination of the returned candidate - under Order VII, Rule 11 CPC - under Section 81 read with Sections 83 and 86 of RPA . (Para -173) (B) Civil Law - Code of Civil Procedure ,1908 - Dismissal of petition under Order VII Rule 11 CPC read with Section 33 of RPA - petitioner not duly nominated candidate - nomination did not have requisite number of valid proposers - "misnomer" - giving an incorrect or wrong name to a person even in a legal document - held - election petition cannot be dismissed at this stage on the ground of incorrect mention of name of one proposer - in order to ascertain the proper and full effect of the proviso appended to Section 33(4) of RPA and whether it can save the petition would require evidence - cannot be a ground to dismiss the petition at this stage in exercise of powers under Order VII Rule 11 CPC. (Para - 95,119) (C) Election Law - The Representation of People Act, 1951 - Dismissal of petition - Section 123 -'corrupt practice' - issue of corrupt practice requires evidence to be established - cannot be adjudicated at preliminary stage without the written statement, issues and evidence - lacks material particulars regarding allegations of corrupt practice - want of Affidavit in Form-25 in compliance of Section 83(1) of RPA - held - no merit to treat the averments in the petition to be allegations of corrupt practice. (Para -126,128) (D) Election Law- The Representation of People Act, 1951 - Dismissal of petition - want of material particulars, cause of action - want of filing a revised/fresh affidavit in Form-26 in compliance of Sections 33, 83 of RPA read with Rule 4-A of Rules of 1961 - held - 226 INDIAN LAW REPORTS ALLAHABAD SERIES Conspicuous absence of material facts in respect of the cause of action relating to the fact of filing of a valid affidavit in Form-26 - revised affidavit annexed to election petition not as per norms - initial affidavit defective which rendered the nomination of the petitioner invalid. (Para - 180,181) HELD:- Election petitioner not being a duly nominated candidate is not entitled to maintain the election petition. Election petition dismissed in exercise of powers under Order VII Rule 11 CPC.(Para - 182) Election petition dismissed. (E-7) List of Cases cited:- 1. Resurgence India Vs Election Commission of India, (2014) 14 SCC 189 2. Jyoti Basu Vs Debi Ghoshal, (1982) 1 SCC 691 3. U.S. Sasidharan Vs K. Kaarunakaran, (1989) 4 SCC 482 4. Dr. Shipra (Smt.) Vs Shankti Lal Khoiwal, (1996) 5 SCC 181 5. T.M. Jacob Vs C. Poulose, (1999) 4 SCC 274 6. V. Narayanswami Vs C.P. Thirunavukkarasu, (2000) 2 SCC 294 7. Rakesh Agarwal Vs Santosh Kumar Gangwar, 2020 (5) ALJ 59 8. Mithilesh Kumar Pandey Vs Baidyanath Yadav, (1984) 2 SCC 1 9. Purushottam Vs Returning Officer, Amravati & Ors., AIR 1992 Bom 227 10. Baban Yadav Vs Abdul Kadir, AIR 1998 Bom 60 11. Mulayam Singh Yadav Vs Dharampal Yadav & Ors., (2001) 7 SCC 98 12. Hari Krishna Lal Vs Atal Bihari Bajpai, 2002 SCC Online All 40 13. Devendra Patel Vs Rampal Singh & Ors., (2013) 10 SCC 801 14. Mithlesh Kumar Sinha Vs Returning Officer for Presidential Election & Ors., 1993 Suppl. (4) SCC 386 15. Charan Lal Sahu Vs Neelam Sanjeeva Reddy, (1978) 2 SCC 500 16. Charan Lal Sahu Vs Giani Zail Singh & Anr., (1984) 1 SCC 390 17. Charan Lal Sahu Vs Dr. APJ Abdul Kalam & Ors., (2003) 1 SCC 609 18. Tej Bahadur Vs Narendra Modi, 2019 SCC Online All 4780 19. Tej Bahadur Vs Narendra Modi, 2020 SCC Online SC 951 20. Brij Mohan Vs Satpal, (1985) 2 SCC 652 21. Rattan Anmol Singh & Ram Prakash Vs Ch. Atma Ram, (1955) 1 SCR 1077 22. S. Ratnamma Vs S. Shiv Prasad, 2001 SCC Online AP 1077 23. Jogya Vs Beti Joga, 1973 ELR 1050 24. Smt. Hema Purohit Vs Trivendra Singh Rawat & Ors., 2018 SCC OnLine Utt. 649 25. Nandiesha Reddy Vs Kavita Mahesh, (2011) 7 SCC 721 26. Chandra Narain Tripathi Vs Kapil Muni Karwariya, (2011) 4 All LJ 235 27. Chandra Narain Tripathi Vs Kapil Muni Karwariya, Election Petition No.1 of 2009, 28. Azhar Hussain Vs Rajiv Gandhi, 1986 Supp SCC 315 29. M. Karunanidhi Vs H.V. Hande, (1983) 2 SCC 473 30. Mayar (H.K.) Ltd. & Ors. Vs Owners & Parties, Vessel M.V. Fortune Express and others, (2006) 3 SCC 100 7 All. Prakash Bajaj Vs. Sri Arun Singh & Ors. 227 31. Sopan Sukhdeo Sable & Ors. Vs Assistant Charity Commissioner & Ors., (2004) 3 SCC 137 32. D. Ramachandran Vs R.V. Janakiraman & Ors., JT 1999 (2) 94 33. H.D. Revanna Vs G. Puttaswamy Gowda & Ors., JT 1999 (1) 126 34. Madiraju Venkata Ramana Raju Vs Peddireddigari Ramachandra Reddy & Ors., AIR 2018 SC 3012 35. A. Manju Vs Prajwal Revanna, (2022) 2 SCC 269 36. Resurgence India Vs Election Commission of India & Anr., AIR 2014 SC 344 37. Sri Mairembam Prithviraj @ Prithviraj Singh Vs Sri Pukhrem Sharatchandra Singh, AIR 2016 SC 5087 38. Mohan Rawale Vs Damodar Tatyaba @ Dadasaheb & Ors. (1994) 2 SCC 392 39. Samant N. Balakrishna etc. Vs George Fernandez & Ors., AIR 1969 SC 1201 40. Shri Udhav Singh Vs Madhav Rao Scindia, (1977) 1 SCC 511 41. T.M. Jacob Vs C. Poulose & Ors., (1994) 4 SCC 274 42. Dharam Yadav @ D.P. Yadav Vs Dharmendra Yadav & Ors., Election Petition No.18 of 2009, MANU/UP/2055/2010 43. Ponnala Lakshmaiah Vs Kommuri Pratap Reddy & Ors., (2012) 7 SCC 788 44. Bhagwan Rambhau Karankal Vs Chandrakant Batesingh Raghuwanshi & Ors., 2001 (6) Supreme 101 45. Ram Bhual Vs Ambika Singh, AIR 2005 SC 4233 46. Ambika Vs Ram Bhual, 2004 SCC OnLine All 1476 47. G. Mallikarjunappa & Anr. Vs Shamanur Shivashankarappa & Ors., (2001) 4 SCC 428 48. Nandiesha Reddy Vs Kavitha Mahesh, (2011) 7 SCC 721 49. Ashraf Kokkur Vs K.VS Abdul Khader & Ors., (2015) 1 SCC 129 50. Kailash Vs Nanhku & Ors., AIR 2005 SC 2441 51. Kuldeep Singh Pathania Vs Bikram Singh Jaryal, AIR 2017 SC 593 52. Kapil Muni Karwariya Vs Chandra Narayan Tripathi, Civil Appeal No.2122 of 2012 53. T. Arivandandam Vs T.V. Satyapal & anr., (1977) 4 SCC 467 (Delivered by Hon'ble Jaspreet Singh, J.) This judgment has been divided into segments to facilitate analysis. These are:- A Genesis 2 B Submissions of counsel for the respondents 6 C Submissions of counsel for the election petitioner. 13 D Legal Analysis and Discussions. 22 D(i) Should the petition be dismissed under Order VII Rule 11 CPC read with Section 33 of RPA, as the petitioner is not a duly nominated candidate since his nomination did not have the requisite number of valid proposers. 49 228 INDIAN LAW REPORTS ALLAHABAD SERIES D(ii) Should the petition be dismissed as it lacks material particulars regarding allegations of corrupt practice and for want of affidavit in Form-25 in compliance of Section 83(1) of RPA. 55 D(iii) Should the petition be dismissed for want of material particulars, cause of action and for want of filing a revised/fresh affidavit in Form-26 in compliance of Sections 33, 83 of RPA read with Rule 4-A of Rules of 1961. 59 E Conclusion. 74 A. GENESIS:- 1. This election petition has been preferred by the petitioner calling in question the biennial elections of the Members of Council of State by the Elected Members of Uttar Pradesh, Legislative Assembly, 2020 (Rajya Sabha - 2020) dated 02.11.2020 wherein the respondents No.1 to 10 have been declared successful by the Returning Officer and it has been prayed that the election of duly elected respondents be declared null and void. 2. The primary ground of challenge as per the petitioner is that the results of the election insofar as it concerns the returned candidates has been materially affected by improper acceptance of their nomination and the improper rejection of the nomination of the petitioner. 3. Certain dates relevant for adjudication of the controversy are being noticed hereinafter. (i) 20th October, 2020:- The notification was issued for biennial election to the Council of the State by the elected Members of the Uttar Pradesh Legislative Assembly 2020 to be held for 10 Members to the Council of the State by the Elected Members of the Uttar Pradesh Legislative Assembly. (ii) 27th October, 2020:- The last date for filing nomination. (iii) 28th October, 2020:- The scrutiny of the nomination forms. (iv) 2nd November, 2020:- The last date for withdrawal of candidature. (v) 9th November, 2020:- Date of polling. (vi) 9th November, 2020:- The counting was also scheduled on 9th November, 2020 and the election was to be completed before 11th November, 2020. 4. The ten respondents of this petition along with the election petitioner had filed their respective nominations. During scrutiny of the nominations, objections were raised regarding nomination of the election petitioner and after due consideration, the Returning Officer by means of his order dated 28.10.2020 rejected the nomination of the election petitioner. 5. The election petitioner had moved a complaint/representation against the rejection of his nomination before the Election Commission of India and failing to get a response, the election petitioner preferred a writ petition before the Supreme Court of India under Article 32 of the Constitution of India which was withdrawn with liberty to avail the alternative statutory remedy and thereafter the petitioner has instituted the instant election petition. 7 All. Prakash Bajaj Vs. Sri Arun Singh & Ors. 229 6. This Court by means of the order dated 18.12.2020 had issued notices to the respondents. The respondents were duly served and they have put in appearance through their respective counsel. Each of the respondents have filed an application under Order VII, Rule 11 CPC. Few of the respondents namely the respondents No.1, 6 and 10 have also moved separate applications under Section 81 read with Section 86 of the Representation of People Act, 1951 (hereinafter referred to as "RPA", in short). In response to the aforesaid applications under Order VII, Rule 11 CPC as well as applications under Section 81 read with Sections 83 and 86 of RPA, the election petitioner has filed his reply and it is these applications which are under consideration of this Court. 7. The details of the said applications and its response which are being considered are mentioned hereinafter:- I Applications under Order VII Rule 11 CPC (a) by respondent No.1 :- Civil Misc. Application No.32 of 2022 and its response by the petitioner :- Civil Misc. Application No.108818 of 2021; (b) by respondent No.2 :- Civil Misc. Application No.117348 of 2021 and its response by the petitioner :- Civil Misc. Application No.121589 of 2021; (c) by respondent No.3 :- Civil Misc. Application No.37 of 2022 and its response by the petitioner :- Civil Misc. Application No.34 of 2022; (d) by respondent No.4 :- Civil Misc. Application No.36949 of 2021 and its response by the petitioner :- Civil Misc. Application No.35of 2022; (e) by respondent No.5 :- Civil Misc. Application No.118163 of 2021 and its response by the petitioner :- Civil Misc. Application No.121591 of 2021; (f) by respondent No.6 :- Civil Misc. Application No.51007 of 2021 and its response by the petitioner :- Civil Misc. Application No.103989 of 2021; (g) by respondent No.7 :- Civil Misc. Application No.117586 of 2021 and its response by the petitioner :- Civil Misc. Application No.121592 of 2021; (h) by respondent No.8 :- Civil Misc. Application No.117337 of 2021 and its response by the petitioner:- Civil Misc. Application No.121590 of 2021; (i) by respondent No.9 :- Civil Misc. Application No.36771 of 2021 and its response by the petitioner:- Civil Misc. Application No.36 of 2022; (j) by respondent No.10 :- Civil Misc. Application No.33 of 2022. II Applications under Section 81 read with 83, 86(1) of RPA (a) by respondent No.1 :- Civil Misc. Application No.30 of 2022 and its response by the petitioner :- Civil Misc. Application No.38 of 2022; (b) by respondent No.6 :- Civil Misc. Application No.51338 of 2021 and its response by the petitioner :- Civil Misc. Application No.103987of 2021; (c) by respondent No.10 :- Civil Misc. Application No.31 of 2022 and its response by the petitioner :- Civil Misc. Application No.105867 of 2021. 8. It will be worthwhile to notice that the application under Order VII Rule 11 CPC as preferred by the respondent No.3 was not found on the record, however, the reply filed by the petitioner was on record. 9. In this view of the matter, a report was called from the computer section as 230 INDIAN LAW REPORTS ALLAHABAD SERIES well as from the Registry of this Court, who informed that no loose application relating to the aforesaid election petition is available either in defective mode or otherwise. The Court requested the learned counsel for the respondent No.3 to provide an attested copy of their application which has been taken on record. 10. The respondent No.10 had filed separate application under Section 81 read with Section 83 of RPA raising objections that the respondents No.1 and 10 had not received true attested copy of the election petition and had also made submissions in this regard during the course of hearing. 11. Learned counsel for the petitioner also responded to the said arguments, however, later, it revealed that the petitioner had not filed his response in writing and accordingly a request was made that through a separate application a response has been filed by the petitioner to the application filed by the respondents No.1 and 10 and as the said grounds are common also in reply to the application of similar nature filed by the respondent No.6, accordingly, the learned counsel for the petitioner sought leave that his formal written response to the application under Section 81 read with Section 83 of RPA moved by the respondents No.1 and 10 be taken on record and considered. 12. This Court in its order dated 06.05.2022 while reserving the matter on the applications as aforesaid had noticed the aforesaid submissions and finds that since both the parties have argued exhaustively and the ground raised by all the respondents either in their application under Order VII Rule 11 C.P.C., or in the separate applications under Sections 81 and 86 of the RPA where the point and ground of challenge being common to all the respondents and much time has been devoted on the said applications hearing all the parties, accordingly, the said applications and the response shall be treated to be the part of record and the Court while deciding the said plea shall consider the same and moreso no prejudice is likely to be caused to any party as all have been given adequate opportunity to make their detailed submissions, both oral and in writing which is also on record. Thus, this order/judgment shall decide all the aforesaid applications. B. SUBMISSIONS OF COUNSEL FOR THE RESPONDENTS:- 13. Shri Raghvendra Singh, learned Senior Counsel assisted by Shri Mohd. Altaf Mansoor and Shri Anurag Kumar Singh, Advocates opened the arguments on behalf of the respondents No.1 and 10. It was followed and taken forward by Shri S.C. Misra, learned Senior Counsel along with Shri Sunil Kumar Chaudhary for the respondent No.6. Shri Kuldeep Pati Tripathi, learned counsel made his submissions on behalf of the respondents No.2, 3, 4 and 7 while Shri Gaurav Mehrotra and Nadeem Murtaza, learned counsel made submissions on behalf of the respondents No.5. Shri Surya Prakash Singh, learned counsel made submissions on behalf of the respondents No.8 and 9. The submissions of Shri Raghvendra Singh and Shri S.C. Misra, learned Senior Counsel had set the tone for the respondents which has been supplemented and reiterated by the other counsel. 14. The submissions raised by the learned counsel for the respondents in tandem can be structured as under:- 7 All. Prakash Bajaj Vs. Sri Arun Singh & Ors. 231 (I) The primary contention of the respondents is that the petitioner is not a duly nominated candidate and the petition is not maintainable at his behest for the following reasons:- (a) The nomination form of the election petitioner suffered from inherent defects inasmuch as it was not a valid nomination in terms of Section 33 of RPA since it did not have the requisite ten valid proposers. (b) The affidavit filed along with nomination in Form No.26 as provided under Rule 4-A of the Conduct of Election Rules, 1961 (hereinafter referred to as "Rules of 1961") was also defective and despite time having been granted, the same was not rectified. Consequently, the nomination was rendered bad and the petitioner cannot claim himself to be a duly nominated candidate. (II) The election petition as preferred and filed before this Court is also not in accordance with Section 81 of RPA which relates to the presentation of the election petition so also the election petition does not adhere to the provisions of Section 83 of RPA. The petition lacks specific details and in absence of material facts and particulars which in turn indicates that there is no valid and subsisting cause of action, it renders the petition liable for rejection under Order VII Rule 11 CPC. (III) The petitioner has leveled allegations of corrupt practice in the petition, but he has failed to give material particulars in respect thereto nor has he filed an affidavit in Form No.25 as required in terms of Rule 94-A of the Rules of 1961, being another flaw for which the petition is liable to be dismissed. 15. Thus, for all the above reasons, the petition at the behest of the election petitioner is not maintainable and is liable to be rejected at the preliminary stage under Order VII Rule 11 CPC. 16. Elaborating the submissions, learned counsel for the respondents have taken the Court through relevant provisions as contained in Part-V of RPA especially Chapter-I which relates to nomination of candidates, more particularly Sections 33 and 36. The attention of the Court has been drawn to Part-VI of RPA more particularly Sections 79, 81, 82, 83 and 86. Reference has also been made to the Rules of 1961 more particularly in context with Rule 4-A and Rule 94-A, also the prescribed Form No.2-C, Form No.25 and Form No.26 respectively. 17. The thrust of the submission of learned counsel for the respective respondents is that the election of returned candidates i.e. respondents cannot be called in question except by an election petition presented in accordance with the provisions of Part-VI of RPA. It is submitted that Section 79(b) of RPA defines the word 'candidate' to mean a person who has been or claims to have been a duly nominated candidate at any election. 18. It is submitted that in terms of Section 81 of RPA, an election petition can be filed by any candidate at such election or an elector. However, in the instant case, the election petitioner is not an elector. He also cannot be treated as a candidate since his nomination was duly rejected by the Returning Officer on 28.10.2020. Now, even if, the election petitioner claims himself to be a 'duly nominated candidate' at an election, even then it will not enure to his benefit since the nomination form filed by the petitioner was inherently defective. It is not in accordance with Section 33 of 232 INDIAN LAW REPORTS ALLAHABAD SERIES the RPA which relates to presentation of nomination paper and requirement for a valid nomination, consequently, the petitioner cannot even claims himself to be a duly nominated candidate, hence, the petition is not maintainable. 19. It was further explained that Section 33 of RPA provides that nomination paper must be delivered to the Returning Officer at the place and time specified in the notification, complete in all respects and in the prescribed form signed by the candidate and by the proposers. It is urged that since the petitioner has not been duly nominated by any recognized political party and he intended to contest the elections as an independent candidate, hence, in his case, in terms of proviso appended to Section 33 of RPA, the nomination form ought to be subscribed by ten valid proposers being the electors of the Constituency. 20. In the instant case, one of the proposer as mentioned in the nomination form namely Nawab Shah was not a valid elector of the Constituency, accordingly, he could not be treated as a proposer as a result the nomination form of the petitioner would be subscribed only by nine proposers and hence against the mandate of Section 33 of RPA, rendering the nomination form invalid. 21. It is also submitted that each nomination form in order to be valid and considered must also be accompanied with an affidavit required in Form No.26 in terms of Rule 4-A of the Rules of 1961 and in the instant case, the affidavit filed by the election petitioner in prescribed format of Form No.26 was defective as it did not have Clause 8(viii) as prescribed in the format of Form No.26. 22. It is urged that this aspect was brought to the notice of the election petitioner by the Returning Officer while receiving the nomination form on 27.10.2020 as also evident from the check-list, a copy of which has been brought on record by the election petitioner along with the election petition. However, there is nothing on record to indicate that the said defect was cured by the election petitioner. In absence of any rectification/revised affidavit filed with the returning officer, the nomination form of the petitioner could not be treated to be valid and accordingly, noticing the aforesaid, the Returning Officer rejected the nomination form of the election petitioner during scrutiny on 28.10.2020. 23. It is also pointed out that the right to contest the elections is not a right available under the common law. It is governed by the provisions of RPA and thus, if any election is to be called in question then the same is governed by the provisions of RPA. It is also submitted that the Apex Court has consistently held that the provisions of RPA are to be strictly construed and in case if there is a breach or non-compliance of the provisions of RPA then the person liable for such breach and non-compliance must bear the brunt and no equity or liberal approach can be taken in context of such a person. 24. It is, thus, argued that the nomination form of the petitioner was not valid so he could not be treated to be a candidate and at the same time he cannot claim himself to be a duly nominated candidate, hence, the petition was not maintainable at his behest and is liable to be dismissed. 25. Taking the submissions forward, it is urged that considering the mandate of Section 83 of RPA which provides that an election petition must contain concise but material fact on which the petitioner relies. 7 All. Prakash Bajaj Vs. Sri Arun Singh & Ors. 233 The petitioner is required to set forth full particular of any corrupt practice that he alleges including a full statement, as possible, relating to the names of the parties alleged to have committed such corrupt practice and date and place of the commission of such practice. The petition must be signed and verified, coupled with the fact, that where the petitioner has alleged any corrupt practice then the election petition must be accompanied by an affidavit in the prescribed format in support of allegation of such corrupt practice and particulars thereof as provided in Form No.25 which is relatable to Rule 94-A of the Rules of 1961. It is also urged that any schedule or any annexure to the petition shall also be signed by the petitioner and verified in the same manner as the election petition itself. 26. It is urged that the entire contents of the election petition targets the Returning Officer and various allegations have been leveled against him indicating that he is involved in corrupt practice with intent to benefit the other candidates, who are none other than the respondents and neither the details of the corrupt practice have been mentioned nor the election petition is accompanied by an affidavit in Form No.25 and even the copies of the election petition which have been received by the respondents No.1 and 10 are not duly verified including its annexure, schedule annexed with the petition and it is in gross violation of Sections 81, 83 and 86 of RPA and in absence of material particulars, the petition does not discloses a subsisting cause of action. Hence, the election petition is worthy of dismissal. 27. DECISIONS CITED BY THE COUNSEL FOR RESPONDENTS:- (a) Resurgence India v. Election Commission of India, (2014) 14 SCC 189; (b) Jyoti Basu v. Debi Ghoshal, (1982) 1 SCC 691; \ (c) U.S. Sasidharan v. K. Kaarunakaran, (1989) 4 SCC 482; (d) Dr. Shipra (Smt.) v. Shankti Lal Khoiwal, (1996) 5 SCC 181; (e) T.M. Jacob v. C. Poulose, (1999) 4 SCC 274; (f) V. Narayanswami v. C.P. Thirunavukkarasu, (2000) 2 SCC 294; (g) Rakesh Agarwal v. Santosh Kumar Gangwar, 2020 (5) ALJ 59; (h) Mithilesh Kumar Pandey v. Baidyanath Yadav, (1984) 2 SCC 1; (i) Purushottam v. Returning Officer, Amravati & Ors., AIR 1992 Bom 227; (j) Baban Yadav v. Abdul Kadir, AIR 1998 Bom 60; (k) Mulayam Singh Yadav v. Dharampal Yadav & Ors., (2001) 7 SCC 98; (l) Hari Krishna Lal v. Atal Bihari Bajpai, 2002 SCC Online All 40; (m) Devendra Patel v. Rampal Singh & Ors., (2013) 10 SCC 801; (n) Mithlesh Kumar Sinha v. Returning Officer for Presidential Election & Ors., 1993 Suppl. (4) SCC 386; (o) Charan Lal Sahu v. Neelam Sanjeeva Reddy, (1978) 2 SCC 500; (p) Charan Lal Sahu v. Giani Zail Singh & Anr., (1984) 1 SCC 390; (q) Charan Lal Sahu v. Dr. APJ Abdul Kalam & Ors., (2003) 1 SCC 609; (r) Tej Bahadur v. Narendra Modi, 2019 SCC Online All 4780; (s) Tej Bahadur v. Narendra Modi, 2020 SCC Online SC 951; (t) Brij Mohan v. Satpal, (1985) 2 SCC 652; (u) Rattan Anmol Singh & Ram Prakash v. Ch. Atma Ram; (1955) 1 SCR 1077; 234 INDIAN LAW REPORTS ALLAHABAD SERIES (v) S. Ratnamma v. S. Shiv Prasad, 2001 SCC Online AP 1077; (w) Jogya v. Beti Joga, 1973 ELR 1050; (x) Smt. Hema Purohit v. Trivendra Singh Rawat & Ors., 2018 SCC OnLine Utt. 649; (y) Nandiesha Reddy v. Kavita Mahesh, (2011) 7 SCC 721; (z) Chandra Narain Tripathi v. Kapil Muni Karwariya; (2011) 4 All LJ 235; (aa) Chandra Narain Tripathi v. Kapil Muni Karwariya, Election Petition No.1 of 2009, decided on 20.12.2013; unreported judgment of the Allahabad High Court; (ab) Azhar Hussain v. Rajiv Gandhi, 1986 Supp SCC 315; (ac) M. Karunanidhi v. H.V. Hande, (1983) 2 SCC 473. C. SUBMISSIONS OF COUNSEL FOR THE ELECTION PETITIONER:- 28. Shri Narendra Kumar Pandey, learned counsel assisted by Shri Vivek Kumar and Shri Jitendra Saksena, Advocates have refuted the submissions made by the learned counsel for the respondents and has urged that first and foremost the scope of Order VII Rule 11 CPC must be noticed. It is urged that the Apex Court has consistently held that while considering the applications under Order VII Rule 11 CPC, it is only and only the averments contained in the petition along with the documents filed by the petitioner is to be seen, the way they are, treating it to be true and without adding or subtracting any sentence or compartmentalizing any part of the petition. The entire petition must be read in a meaningful manner without culling out sentence in isolation and only then if the Court comes to the conclusion that the petition does not disclose any cause of action or that the petition is barred by any law for the time being in force, then the Court may exercise its powers to reject the petition. 29. Moving forward, learned counsel for the election petitioner has argued that insofar as the present petition is concerned, it is his specific case that he had filed two sets of nomination papers at around 02:50 PM on 27.10.2020. One set was in English on green colour paper while the other set was in Hindi on pink colour paper. It is urged that in terms of Section 33(4) of RPA, the Returning Officer while receiving a nomination paper must satisfy himself in respect of names and the electoral roll, numbers of the candidate and his proposers, as entered in the nomination paper are the same as those entered in the electoral rolls. 30. It is submitted that while two sets of nomination papers were filed, the petitioner was handed over the check-list which only indicated that the affidavit filed along with the nomination paper in Form No.26 was not correct and time was granted to the petitioner to furnish a revised and a fresh affidavit. It is also the specific case that the petitioner was given Serial No.22 in respect of the nomination form filed in English on green paper but not for the other form on pink colour paper which in seratum ought to be at S.No.23 and the said form was also complete in all respects but no number was given and the second nomination was also not considered by the Returning Officer. 31. It is also submitted that the alleged discrepancy which was raised at the time of scrutiny relating to the name of one of the proposers as mentioned in the nomination form filled in English on green colour paper related to the name of the 7 All. Prakash Bajaj Vs. Sri Arun Singh & Ors. 235 proposer at S.No.3 as Nawab Shah, however, his correct name was Nawabjaan. It is urged that the serial number at which the name of Shri Nawab Shah (read Nawabjaan) as mentioned in the list prepared under Section 152 of RPA was correctly mentioned in the nomination form so also the signatures of Nawabjaan was also present. Hence, this inadvertent error, if any, was nothing but a misnomer and an inaccurate description and merely a technical & clerical error in the nomination paper which in terms of the proviso appended to Section 33(4) of RPA was liable to be ignored. 32. It is also urged that even in terms of Section 33(6) of RPA, a candidate is entitled to file maximum upto four sets of nomination papers and in the instant case, the election petitioner had submitted two sets of nomination papers one in English on green colour paper and one in Hindi on pink colour paper. The nomination form in pink colour paper was complete in all respects. Even if at all there was any discrepancy in the other set filled in English on green colour paper, nevertheless the Returning Officer ought to have considered the nomination paper filed by the petitioner on pink colour paper and in failing to consider it, the Returning Officer erred and illegally rejected the nomination paper of the election petitioner with an oblique motive. 33. It is further argued that even during the scrutiny of the nomination, two sets of objections were filed against the nomination of the election petitioner, one by Haridwar Dubey and the other by Shri Lalji Verma. The petitioner had also filed his response thereto and had clearly stated that the clerical error in the name of one of the proposers is liable to be overlooked being a misnomer in terms the proviso appended to Section 33(4) of RPA and it was also stated that though the Returning Officer had the complete list which is maintained in terms of Section 152 of RPA and the details of Nawabjaan could be easily verified. Moreover, the petitioner was willing to produce Nawabjaan in person, to verify the fact of proposing the name of the election petitioner by him within twelve hours, if permitted. The Returning Officer had ample power and jurisdiction vested in him to adjourn the hearing on the objections raised on the nomination form during scrutiny to the following day to provide the petitioner time and to enable him to rebut the objections, but no such opportunity was granted to the election petitioner thereby with a deliberate intent the nomination form of the petitioner was rejected to help the other candidates. 34. It is also urged that insofar as the affidavit in Form No.26 is concerned, though one column 8(viii) in the prescribed format Form No.26 was missing and the same had been informed by the Returning Officer as indicated in the check-list provided to the petitioner. However, the petitioner got a fresh/revised affidavit prepared which was submitted to the Returning Officer prior to commencement of scrutiny on 28.10.2020. The petitioner was not provided any receipt of the said affidavit nor any receipt was given regarding filing of second set of nomination form on pink colour paper, thus, the rejection of the nomination form of the petitioner was illegal, deliberate and bad. 35. Learned counsel for the petitioner has further urged that the petitioner has primarily structured his petition in two parts. One relates to the facts and details 236 INDIAN LAW REPORTS ALLAHABAD SERIES including material particulars relating to illegal rejection of the nomination form of the election petitioner and the other relates to the details, facts and material particulars relating to the issue of illegal acceptance of nomination form and affidavits of returned candidates. 36. It is urged that reference in certain paragraphs in the petition is to the manner in which the Returning Officer has acted and this is referred to by the learned counsel for the respondents, during their course of arguments, as allegations of corrupt practice. On the contrary, the said paragraphs actually indicate the sequence of event as they unfolded and the attitude/reaction of the Returning Officer which led to the illegal rejection of the nomination of the petitioner by taking recourse to immaterial, technical deficiencies which were of unsubstantial character. However, the same Returning Officer for the same/similar deficiencies and treating them to be of unsubstantial character, had accepted the nomination form of the returned candidates, reflecting dual standards adopted and this has materially affected the results of the election. 37. It is in this context that the facts have been detailed along with relevant schedule appended with the petition. The election petitioner has even brought on record certain photographs indicating that at the time of presentation of the nomination form, one form filled in English on green colour paper and the other form filled in Hindi on pink colour was presented before the Returning Officer. The election petitioner has also brought on record a copy of the revised affidavit in Form No.26 which was filed before the Returning Officer prior to the commencement of scrutiny of the nomination form and in this context if the contents of the election petition is read as a whole it will indicate the entire bundle of facts with material particulars have been clearly and categorically stated. Accordingly, it cannot be said that the petitioner has not disclosed a valid cause of action or that material particulars have not been indicated. 38. It is also urged that while dealing with the application under Order VII Rule 11 CPC, the Court is required to see the complete averment in the petition and treating the same to be true. The error/deficiencies as pointed out by the respondents 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 parties to lead evidence, can the matter be decided. However, it cannot be said that the election petition is not in accordance with the provisions of Section 81 and Section 83 or Section 86 of RPA and that no valid and subsisting cause of action has been indicated in the election petition. No provision of any law has been pointed out which prohibits or bars the election petition. Hence, the applications moved by the respondents are frivolous and deserve to be rejected. 39. It is further submitted that the fact whether the petitioner had filed the second set of nomination on pink colour paper is a question of fact which can only be decided after leading of evidence. Prima-facie the pleadings are quite specific and even the photographs and schedules compliment the pleadings and the success of the said averments can only be tested after trial and not at this preliminary stage. 7 All. Prakash Bajaj Vs. Sri Arun Singh & Ors. 237 40. It is also submitted that the petitioner had sought the true copies available with the Returning Officer relating to the Form No.2-C i.e. nomination form of the returned candidates as well as their respective affidavits in Form No.26. Also, the petitioner had sought the CCTV Footage as the process of presentation of the nomination form was duly videographed to enable the petitioner to prove his plea regarding furnishing and presentation of second set of nomination filed by the election petitioner on pink colour paper but the same has not been provided to the petitioner in its entirety. 41. It is further urged that the petitioner had to seek judicial intervention by filing a writ petition before this Court at Prayagraj wherein an order was passed and in furtherance thereof only part compliance of the order of the Writ Court was made and the petitioner was provided with the Form No.2C filed by the returned candidates. The petitioner was neither provided with the copy of the second set of nomination on pink paper nor all the affidavits of the returned candidates was provided. Even the CCTV Footage as required was not provided indicating that the Returning Officer was shielding an important piece of relevant evidence. 42. Learned counsel for the petitioner has also submitted that since the averments made in the election petition are primarily focused on the two issues relating to illegal rejection of the nomination of the petitioner and illegal acceptance of the nomination of the respondents and no allegation of corrupt practice has been alleged, hence, there was no requirement of filing an affidavit in terms of Rule 94-A of the Rules of 1961.