# Rangnath Mishra Election v. Shri Ramesh Chand

- **Citation:** (2020) 1 ILRA 851
- **Court:** High Court of Judicature at Allahabad
- **Decided:** 2020-01-28
- **Bench:** Surya Prakash Kesarwani
- **Source:** https://unisonlegal.in/judgment/allahabad-high-court/rangnath-mishra-election-v-shri-ramesh-chand-45704
- **Pages:** 37

## Headnote

A. Election Petition - Civil Procedure Code
- Order VI Rule 2 - Pleading - Meaning
and Object - 'Pleading' means plaint or
written statement - Every pleading shall
contain only a statement in concise form
of the material facts on which the party
pleading relies for his claim or defence
but not the evidence by which they are to
be proved - Thus in a pleading the facts
and not evidence are required to be
pleaded - Object is twofold - First is to
afford the other side intimation regarding
the particular of facts of the case so that
it may be met by the other side and
Second
is
to
enable
the
court
to
determine what is really the issues
between the parties. (Para 16, 17 & 21)
6th Phase of election
 - 16.04.209 to 27.05.2019
Issue of Notification
16.04.2019
Last Date for making
Nominations
23.04.2019
(11:00 AM to 03:00 PM)
Scrutiny
of
Nominations
24.04.2019
(11:00 AM to 03:00 PM)
Last
date
for
Withdrawal
of
candidature
26.04.2019
(11:00 AM to 03:00 PM)
Date of Poll
12.05.2019
(07:00 AM to 06:00 PM)
Date of Counting of
Votes
23.05.2019
(08:00 AM to till the end of
counting)
852 INDIAN LAW REPORTS ALLAHABAD SERIES
B. Election Petition - Representation of
People Act, 1951 - 83(1)(A) - Civil
Procedure Code - Order VI Rule 2(1) -
Meaning of expression 'Material facts' -
Section 83(1)(a) requires that an election
petition shall contain a concise statement
of material facts on which the petitioner
relies - The expression 'material facts'
and the expression 'full particulars' have
not been defined in the Code and Act.
These
two
expressions
have
been
judicially interpreted by Hon'ble Supreme
Court - It is settled that all those primary
facts which must be proved at the trial by
a party to establish the existence of a
cause of action or his defence, are
'material facts' - It must be pleaded and
failure to plead even a single material
fact amounts to disobedience of the
mandate of sec. 83(1) (a) - 'Particulars'
are the details of the case set up by the
party - 'Particulars' serve the purpose of
finishing touches to the basic contours of
a picture already drawn, to make it full,
more detailed and more informative. (Para
22 & 24)

C. Election Petition - Cause of Action - It
implies a right to sue - Material facts
which are imperative for the suitor to
allege and prove, constitute cause of
action - In every action, there has to be a
cause of action, if not, the plaint or the
writ petition shall be rejected summarily.
(Para 35)

D. Election Petition -Civil Procedure Code
- Order VI Rule 16, Order VII Rule 11 -
Proceeding - Striking out the pleading -
If the pleadings in various paragraphs are
unnecessary or scandalous or frivolous or
vexatious or tend to prejudice, embarrass
or delay the fair trail of the suit or which
is otherwise an abuse of the process of
the Court, such paragraphs of the petition
are liable to be struck out under Order VI
Rule 16 C.P.C. at any stage of the
proceedings - If after striking out the
pleadings, the court finds that no triable
issues remain to be considered, it has
power to reject the election petition
under Order VII Rule 11 (Para 36 and 37)
E. Election Petition - Representation of
People
Act,
1951
-
Section
36
-
Nomination
-
Defect
of
substantial
character and Defect not of substantial
character
-
Defect
of
substantial
character are grounds for rejection of
nomination
paper
which
have
been
provided in sub-section (2) of Section 36
of the Act, 1951 - Section 33 provides for
presentation of nomination paper and
requirements for a valid nomination -
Instances of defects which are not of
substantial character, are provided in the
proviso to sub-Section (4) of Section 33;
the proviso to Rule 4 of the Rules, 1961
or any minor mistake - Generally all such
defects which do not constitute grounds
of rejection of nomination paper under
36(2) may be said to be the defects not of
substantial character. (Para 48)

Applications in the Election
Petition
disposed of. (E-1)

List of cases cited :

## Text

_Characters 0–39,957 of 123,413. This is a partial read: ask again with offset=39957 for what follows._

1 All. Rangnath Mishra Vs. Shri Ramesh Chand
851
to make the opposite party understand the
case that has been set up against him
which he has required to meet. Whether in
an election petition, a particular fact is
material or not and as such required to be
pleaded is a question which depends upon
the nature of the charge levelled and the
facts and circumstances of each case.

(vi) I find that material facts are
not lacking in the election petition. Copies
of material documents have also been filed
along with the election petition. The
election petition contains material facts
and particulars. Therefore, the third
objection of the respondent deserves
rejection and is hereby rejected. The
Question No. C is answered accordingly.

29. For all the reasons afore-stated I
do not find any substance in Paper No. A11 being application no. 3 of 2018 under
Section 86(1) of the Act, 1951 and Paper
No. A-10 being application no. 3 of 2018
under order VI Rule 16 read with Order 7
Rule 11(a) of the Code of Civil Procedure.
Therefore, both the applications are
rejected.

30.

Written
statement
dated
11.11.2017 was filed by respondent on
14.11.2017 and the election-petitioner was
granted three weeks' time to file reply to it.
On 12.01.2018, the election-petitioner has
filed the replication dated 10.01.2018.

List on 08.02.2019 for framing of
issues.
----------
(2020)1ILR 851

ORIGINAL JURISDICTION
CIVIL SIDE
DATED: ALLAHABAD 28.01.2020

BEFORE
THE HON'BLE SURYA PRAKASH
KESARWANI, J.
Election Petition No. 11 OF 2019

Rangnath Mishra ...Election Petitioner
Versus
Shri Ramesh Chand ...Respondent

Counsel for the Petitioner:
Sri Man Mohan Mishra, Sri N.K. Pandey, Sri
Narendra Kumar Pandey, Sri Rangnath
Mishra (In Person)

Counsel for the Respondent:
Sri Manish Goyal, Sri Brajesh Pratap Singh,
Sri P.K. Singhal

A. Election Petition - Civil Procedure Code
- Order VI Rule 2 - Pleading - Meaning
and Object - 'Pleading' means plaint or
written statement - Every pleading shall
contain only a statement in concise form
of the material facts on which the party
pleading relies for his claim or defence
but not the evidence by which they are to
be proved - Thus in a pleading the facts
and not evidence are required to be
pleaded - Object is twofold - First is to
afford the other side intimation regarding
the particular of facts of the case so that
it may be met by the other side and
Second
is
to
enable
the
court
to
determine what is really the issues
between the parties. (Para 16, 17 & 21)
6th Phase of election
 - 16.04.209 to 27.05.2019
Issue of Notification
16.04.2019
Last Date for making
Nominations
23.04.2019
(11:00 AM to 03:00 PM)
Scrutiny
of
Nominations
24.04.2019
(11:00 AM to 03:00 PM)
Last
date
for
Withdrawal
of
candidature
26.04.2019
(11:00 AM to 03:00 PM)
Date of Poll
12.05.2019
(07:00 AM to 06:00 PM)
Date of Counting of
Votes
23.05.2019
(08:00 AM to till the end of
counting)
852 INDIAN LAW REPORTS ALLAHABAD SERIES
B. Election Petition - Representation of
People Act, 1951 - 83(1)(A) - Civil
Procedure Code - Order VI Rule 2(1) -
Meaning of expression 'Material facts' -
Section 83(1)(a) requires that an election
petition shall contain a concise statement
of material facts on which the petitioner
relies - The expression 'material facts'
and the expression 'full particulars' have
not been defined in the Code and Act.
These
two
expressions
have
been
judicially interpreted by Hon'ble Supreme
Court - It is settled that all those primary
facts which must be proved at the trial by
a party to establish the existence of a
cause of action or his defence, are
'material facts' - It must be pleaded and
failure to plead even a single material
fact amounts to disobedience of the
mandate of sec. 83(1) (a) - 'Particulars'
are the details of the case set up by the
party - 'Particulars' serve the purpose of
finishing touches to the basic contours of
a picture already drawn, to make it full,
more detailed and more informative. (Para
22 & 24)

C. Election Petition - Cause of Action - It
implies a right to sue - Material facts
which are imperative for the suitor to
allege and prove, constitute cause of
action - In every action, there has to be a
cause of action, if not, the plaint or the
writ petition shall be rejected summarily.
(Para 35)

D. Election Petition -Civil Procedure Code
- Order VI Rule 16, Order VII Rule 11 -
Proceeding - Striking out the pleading -
If the pleadings in various paragraphs are
unnecessary or scandalous or frivolous or
vexatious or tend to prejudice, embarrass
or delay the fair trail of the suit or which
is otherwise an abuse of the process of
the Court, such paragraphs of the petition
are liable to be struck out under Order VI
Rule 16 C.P.C. at any stage of the
proceedings - If after striking out the
pleadings, the court finds that no triable
issues remain to be considered, it has
power to reject the election petition
under Order VII Rule 11 (Para 36 and 37)
E. Election Petition - Representation of
People
Act,
1951
-
Section
36
-
Nomination
-
Defect
of
substantial
character and Defect not of substantial
character
-
Defect
of
substantial
character are grounds for rejection of
nomination
paper
which
have
been
provided in sub-section (2) of Section 36
of the Act, 1951 - Section 33 provides for
presentation of nomination paper and
requirements for a valid nomination -
Instances of defects which are not of
substantial character, are provided in the
proviso to sub-Section (4) of Section 33;
the proviso to Rule 4 of the Rules, 1961
or any minor mistake - Generally all such
defects which do not constitute grounds
of rejection of nomination paper under
36(2) may be said to be the defects not of
substantial character. (Para 48)

Applications in the Election
Petition
disposed of. (E-1)

List of cases cited :-

1. Surendra Kashinath Rawat vs. Vinayak N.
Joshi, AIR 1999 SC 162

2. Raj Narain vs. Smt. Indira Nehru Gandhi and
another, (1972) 3 SCC 850

3. Udhav Singh vs. Madhav Rao Scindia, (AIR
1976 SC 744)
4. Bharat Singh and others vs. State of
Haryana and others, (1988) 4 SCC 534
5. Azhar Hussain vs. Rajiv Gandhi, AIR 1986 SC
1253 (1)
6. Dhartipakar Madan Lal Agarwal vs. Shri Rajiv
Gandhi, AIR 1987 SC 1577
7. N.P. Ponnuswami v. Returning Officer, AIR
1952 SC 14
8. Jagan Nath v. Jaswant Singh, AIR 1954 SC 210
9. Joyti Basu v. Debi Ghosal, AIR 1982 SC 983
10. Mahendra Pal vs Ram Dass Malanger And
Ors, (2000) 1 SCC 261
11. Hari Shankar Jain vs. Sonia Gandhi, (2001)
8 SCC 233
1 All. Rangnath Mishra Vs. Shri Ramesh Chand
853
12.
Mahadeorao
Sukaji
Shivankar
vs.
Ramaratan Bapu and others, (2004) 7 SCC 181
13. Pothula Rama Rao vs. Pendyala Venakata
Krishna Rao and others, (2007) 11 SCC 1
14. Anil Vasudeo Salgaonkar vs. Naresh
Shigaonkar, (2009) 9 SCC 310
15. Ram Sukh vs. Dinesh Aggarwal, (2009) 10
SCC 541
16. Jitu Patnaik vs. Santan Mohakud and
others, 2012 (4) SCC 194
17. Samant N. Balkrishna and Another v.
George Fernandez and Others, (1969) 3 SCC
238
18. Neelam Sonkar vs. Dr. Bali Ram, 2011 (11)
ADJ 341 (Para-26)
19. Sathi Vijay Kumar Vs. Tota Singh and
others (2006) 13 SCC 353
20. Abdul Razak (D) Through L.Rs and others
Vs. Mangesh Rajaram Wagle and others JT
2010(1)SC 508
21. Roop Lal Sathi Vs. Nachhattar Singh Gill
1982(3)SCC 487
22. K.K. Modi Vs. K.N. Modi JT 1998(1)SC 407;
(1998) 3 SCC 573
23. Union Bank of India Vs. Naresh Kumar
(1996) 6 SCC 660

(Delivered by Hon'ble Surya Prakash
Kesarwani, J.)

1. Heard Sri Manish Goyal, learned
senior advocate along with Sri P.K.
Singhal, assisted by Sri Brijesh Pratap
Singh, learned counsel for the applicantrespondent and Sri N.K. Pandey, learned
counsel for the election petitioner on
Applications filed by the respondent being
Application A-9 (under Order VI Rule 16,
C.P.C.), Application A-10 (under Order
VII Rule 11, C.P.C.), and Application A11 (under Order VIII Rule 1, C.P.C.).

FACTS:-

2. Briefly stated facts of the present
case are that election for Member of
Parliament,
from
78-Bhadohi
parliamentary constituency of District
Bhadohi was held as per following
program:-

3. In the aforesaid election, 32
candidates including the election petitioner
and the respondent, filed their nomination.
Nomination papers of 20 candidates were
rejected by the returning officer. On
24.04.2019 after withdrawal of nomination
papers, the returning officer issued list of
contesting candidates i.e. 12 candidates in
Form 7A dated 26.04.2019 along with
symbols allotted to them and other
requisite particulars including photographs
of candidates etc. As per aforesaid list of
contesting
candidates,
the
election
petitioner was contesting the election as
candidate of Bahujan Samaj Party and
the respondent was contesting the
election as candidate of Bhartiya Janta
Party. Copy of form 7A has been filed as
Annexure-18 to the election petition. After
counting, the returning officer declared the
result. The election petitioner secured
4,66,414 votes while the respondent
secured
5,10,029
votes.
Thus,
the
respondent was declared elected.

4. In this election petition, the
election petitioner sought the following
reliefs:

"(i) The declaration of the
election of respondent - Shri Ramesh
Chand as a Member of Parliament from
78 - Bhadohi Parliamentary Constituency
of District Bhadohi, be set aside and be
declared null and void.

(ii) Grant any other and further
relief which this Hon'ble Court may deem
854 INDIAN LAW REPORTS ALLAHABAD SERIES
fit
and
proper
in
the
facts
and
circumstances of the case;

(iii) Award the cost of petition in
favour of the election petitioner."

5. Grounds for filing the present
election petition are stated in para-17 of
the election petition, as under:-

"17. That, the election petitioner is
challenging the validity of the election of
Respondent -Ramesh Chand as a Member
Parliament from 78 - Bhadohi Parliamentary
Constituency of District Bhadohi on following
amongst other grounds:
GROUNDS

(A) Because, the election of the
returned candidate Shri Ramesh Chand as
a Member Parliament from 78 - Bhadohi
Parliamentary Constituency of District
Bhadohi is illegal and void due to
improper acceptance of his nomination
paper by the Returning Officer, which
materially affect the result of the election.

(B) Because, the election of the
returned candidate Shri Ramesh Chand as
a Member Parliament from 78 - Bhadohi
Parliamentary Constituency of District
Bhadohi is illegal and void due to
improper rejection of the nomination
paper of Shri Shrikant, S/o Lal Bihari,
R/o Village - Hariharpur, Post - Sanda
Suriyawan, District - Bhadohi, and due to
improper rejection of the nomination
papers of other candidates.

(C) Because, the result of the
election, so far as it concern the returned
candidate, is materially affected due to
non-compliance of the provisions of the
Constitution of India, Representation of
People Act, 1951 and the Rules & Orders
made therein, as well as due to noncompliance of the statuary orders and
instructions & Orders made therein, as
well as due non-compliance of the
statutory orders and instructions &
guidelines
issued
by
the
Election
Commission of India from time to time by
exercising the powers under Article 324 of
the Constitution of India."

6. In paragraph-18 of the election
petition, the election petitioner has stated
as under:

"18. That, the concise statement
of the material facts in respect of the
Grounds - (A), (B) & (C) are as under:-"

7. Thereafter in paragraphs-19 to
56, the election petitioner has made
averments which according to him, as
stated in paragraph-18; are the concise
statement of the material facts in
respect of grounds -(A), (B) and (C).

8. The Application A-9 under
Order VI Rule 16, C.P.C. has been filed
by the respondent winning candidate
praying to strike down paragraphs Nos.8,
9, 10, 14, 16,17, 22, 23, 24, 25, 28, 29, 30,
31, 32, 33, 35, 36, 37, 38, 39, 40, 41, 43,
44, 45, 46, 47, 48, 49, 52 and 53. The
election petitioner has filed objection A-15
and reply A-17 has been filed by the
applicant-respondent.

9. The Application A-10 under
Order VII Rule 11, C.P.C., has been filed
by the respondent winning candidate
praying to dismiss the election petition
being barred by law and also for want of
disclosure
of
material
facts
and
disclosure of cause of action. The
election petitioner has filed objection A-16
and reply A-18 has been filed by the
applicant-respondent.

10. The Application A-11 under
Order VIII Rule 1, C.P.C. has been filed
1 All. Rangnath Mishra Vs. Shri Ramesh Chand
855
by the respondent winning candidate
praying to grant three months' time for
filing written statement.

11. Since grounds for Application A9 and Application A-10 filed by the
respondent winning candidate are common
or related to each other, therefore, with the
consent of learned counsels for the parties,
all the three applications have been heard
together for disposal.

SUBMISSIONS:-

12. Sri Manish Goyal, learned
senior
counsel
for
the
applicantrespondent/ winning candidate submits,
as under:-

(i) Election petition is not a suit
in common law or action in equity.
Election of returned candidate cannot be
lightly interfered with. It has to be seen
whether the allegations made in the
election petition constitute material facts
and in absence thereof, election petition
deserves to be dismissed.

(ii) As per own case of the
election petitioner, the election petition has
been filed on the grounds mentioned in
Section
100(1)(c)
and
Section
100(1)(d)(i)/(iv) but the election petitioner
has not stated material facts in the election
petition in terms of Section 83 of The
Representation of People Act, 1951
(hereinafter referred to as ''The Act 1951')
with respect to the grounds (A), (B) and
(C) mentioned in paragraph-17 of the
election petition.

(iii) Perusal of contents of
paragraphs of the election petition (which
he read extensively) makes it clear that it
completely lacks averments which may
constitute material facts to challenge the
election on the Grounds (A), (B) and (C).
Election petition also does not disclose
cause of action. Therefore, the paragraphs
as mentioned in prayer clause of the
Application A-9 are liable to be struck out
and the election petition deserves to be
dismissed as barred by law and also for
want of disclosure of material facts and
cause of action.

(iv) The nomination paper of
another candidate namely Shri Shrikant
was rejected. It suffered from several
defects. Being independent candidate, he
required 10 proposers under Section 33
of the Act 1951 but there were only eight
proposers. He has also left blank the
columns 2 and 3 of his nomination paper
and
not
mentioned
even
assembly
constituency of the proposers. Material
facts regarding Shrikant to be independent
candidate is lacking.

(v) In paragraphs 20 and 45 of
the election petition, vague allegation of
dual standard has been made with regard
to 20 candidates whose nomination papers
were rejected but it has not been disclosed
what were the dual standards.

(vi) The election petitioner has
also alleged that the nomination form of
the respondent suffered from similar and
identical defect on which the nomination
of 20 candidates were rejected. Copies of
the rejection orders have been filed but
perusal thereof shows that the nomination
form of 20 candidates were rejected on
the basis of such defects which are nonexistent in the case of applicantrespondent.

(vii) In his objection, the
election petitioner has alleged that
material facts have been stated in
paragraph Nos. 1 to 16 but perusal of
paras-1 to 16 of the election petition shows
that it contains no material facts. Vague
averments have been made by the election
petitioner in the election petition.
856 INDIAN LAW REPORTS ALLAHABAD SERIES

(viii)
Paragraph-16
of
the
election petition is vague. Paragraph Nos.
8, 10, 16, 24, 25, 44 and 45 lacks
material facts with reference to Ground
(B). Therefore, the statutory provisions of
Section 100(1)(c) of the Act, 1951, are not
satisfied.

(ix) The averments made in
election
petition
with
reference
to
Grounds (A) and (C), do not contain
reference of any provisions or circular
or guidelines which stood violated.
Pleadings in this regard in paragraph-28
of the election petition are vague.

(x)
The
respondent
was
a
candidate of BJP. He filed four sets of
nomination papers, out of which three
were not accepted and one was accepted
by the returning officer. There is no
pleading that nomination paper of the
respondent accepted by the returning
officer suffers from any illegality.
Therefore, the Ground (A) taken by the
election-petitioner referable to Section
100(1)(d)(i) of the Act, 1951 to hold the
election of the respondent to be void due
to
alleged
improper
acceptance
of
nomination paper by the returning officer,
has no factual foundation and completely
lacks disclosure of material facts in this
regard.

(xi) The averments made by the
election petitioner with reference to
Grounds (A) and (C) in the election
petition are either irrelevant or vague or
lack material facts.

(xii) Paragraph-14 is irrelevant
and not related to Grounds (A), (B) and
(C).

(xiii) Paragraph-16 is vague
and vexatious. Paragraphs 22 and 23 are
not relevant for acceptance of nomination
papers. Paragraph-24 and 25 lacks
material facts relating to Ground (B).

(xiv) It has not been stated that
Shrikant
was
contesting
election
as
independent candidate. Since he was
independent candidate and there were not
ten proposers. Hence his nomination paper
was not a nomination in the eyes of law.

(xv) Contents of paragraph-28
are vague inasmuch as it has not been
stated that which affidavit filed by the
respondent was not proper.

(xvi)
The
alleged
defect
mentioned in para-29 is not of substantial
nature because the BJP has itself given
certificate that respondent is the official
candidate of BJP and thereafter list was
published by the returning officer showing
respondent as candidate of BJP.

(xvii) Paragraphs 30 and 46 of
the election petition impute motive of
corrupt practice, i.e. undue influence
upon voters but it is not a ground to
challenge the election of the respondent
in the election petition. Therefore, it has
no material facts with reference to the
grounds of the election petition.

(xviii) There is no pleading in
the election petition that the newspaper
containing news item dated 26.04.2019
has circulation in the constituency and that
the loyal voters of BSP read it. Therefore,
pleadings are vague and do not constitute
material facts.

(xix)
Form
C-1
is
for
publication by candidate, From C-2 is
publication by political property, Form C3 is the reminder by the returning officer
to a candidate for publication. Therefore,
these averments are not part of nomination
paper.

(xx) Paragraphs-44 and 45 of
the election petition are vague. No
material facts have been stated.

(xxi) Para-47 are irrelevant to
the Grounds (A), (B) and (C) of the
election petition. Para-48 refers to Form
1 All. Rangnath Mishra Vs. Shri Ramesh Chand
857
26 of a candidate of a different
constituency therefore, which is not
relevant. Hence, pleading is irrelevant.
Para-49 is vague and lack material facts.
Paras 52 and 53 refers to the provisions
of Section 33 and 33A of the Act, 1951
but there is no disclosure of fact that
how these provisions have been violated
by the respondent.

(xxii)
Para-53
states
contravention of provisions of Act, 1951,
provision of the Conduct of Elections
Rules, 1961 and contravention of orders,
guidelines and instructions of the Election
Commission of India issued from time to
time in filing affidavit in Form 26 but it
has not been disclosed which provision,
order or guideline has been violated and
how it has been violated.

(xxiii) Pleadings can be struck
down in part under Order VI Rule 16,
C.P.C. The distinct ground must have
distinct material fact.

(xxiv)
If
paragraphs
as
mentioned in Application A-9 are struck
down, then remaining paragraphs shall not
constitute material facts to give a cause of
action to challenge the election of the
respondent returned candidate. Therefore,
the election petition is liable to be
dismissed under Order VII Rule 11(a),
C.P.C.

(xxv) Mentioning of BSP in
clause (4) of part-kha of From 26 stood
rectified in view of Section 38 of the Act,
1951 on allotment of symbol of BJP and
on issuance of list of candidates under
Rule 10(4) of The Conduct of Election
Rules, 1961 in Form-7A. That apart there
was no error in Form-26 and it was merely
a typographical error which is not of
substantial nature which will result in
substantial defect.

IN REJOINDER:-

(xxvi) In paragraph 8 of the
election petition, the election petitioner has
not disclosed material facts with regard to
allegation of pre-planned mechanism.

(xxvii) In paragraph 9 of the
election petition, the election petitioner has
not disclosed any material facts for the
allegation of improper acceptance of
nomination paper of Sri Ramesh Chandra
(the respondent returned candidate). The
objection in this regard has been raised by
the
applicant
returned
candidate
in
paragraph 7 of the Application A-9.

(xxviii)
Pleadings
in
paragraph-10 of the election petition are
vague. In paragraph 6, it has been stated
that election petitioner and 31 other
candidates, total 32 candidates have filed
nomination papers. In paragraph 8, it has
been stated that nomination papers of 20
candidates were rejected. It has not been
disclosed who withdrawn his nomination.

(xxix) In Paragraph 10, it has
been stated that after withdrawal of
nomination papers, the Returning Officer
prepared list of contesting candidates
containing 12 names. Therefore, the
pleadings are quite vague with regard to
the rejection of nomination papers and
withdrawal of nomination papers. The
applicant - respondent has made averments
in this regard in paragraph 8 of the
application A-9.

(xxx) In paragraph-14 of the
election
petition,
the
pleadings
are
incomplete as it does not disclose at which
polling booth, polling was done through
ballot paper votes.

(xxxi) Contents of paragraph16 of the election petition are absolutely
vague inasmuch as it does not contain any
specific pleading as to which provision of
Act, 1951 was violated by the Returning
Officer by accepting nomination of the
respondent winning candidate and how it
858 INDIAN LAW REPORTS ALLAHABAD SERIES
materially affected the result of the
election. Averments in this regard have
been made in paragraph-10 of the
Application A-9.

(xxxii) The nomination papers of
20 candidates whose nomination was
rejected by the Returning Officer, have not
been filed except one candidate, namely,
Sri Shrikant as referred in Ground-B
under paragraph-17 of the election
petition. Thus, with respect to the
remaining 19 candidates, there is no
material facts have been stated in
relation to their nomination paper. With
regard to nomination of Sri Shrikant, there
is complete absence of material facts in the
election petition that the said Sri Shrikant
was an independent candidate and that his
nomination paper was supported by ten
proposals, who were electors of the
constituency. Thus, there is absence of
material facts in the election petition.

(xxxiii)
Averments
of
paragraphs-22 and 23 of the election
petition are not relevant for any of the
ground of the election petition inasmuch as
these
paragraphs
only
disclose
the
nomination paper filed by the election
petitioner which was accepted by the
Returning Officer. Objection in this regard
has been taken in paragraphs 12 and 13 of
the Application A-9.

(xxxiv) Paragraph 28 of the
election
petition
is
wholly
vague,
irrelevant and frivolous inasmuch this
paragraph does not disclose at all that
which conditions as prescribed under the
Act or the Rules or under any instructions,
have not been followed. Merely vague
allegations have been made. Objection in
this regard has been taken in paragraph 15
of the Application A-9 .

(xxxv)
The
averments
in
paragraph-29 of the election petition are
wholly irrelevant inasmuch as it refers to
affidavit of the respondent filed by him
while contesting election for member of
U.P. Legislative Assembly from Majhwa
constituency District Mirzapur in the year
2017 as a candidate of Bahujan Samaj
Party. The controversy involved in the
election petition is with respect to the
election of the applicant-respondent for
member of Lok Sabha.

(xxxvi) Pleadings in para-30 of
the election petition are vague and
irrelevant as has also been stated in para17 of the Application A-9.

(xxxvii) In Part-A, Clause-23 in
the affidavit in Form-26 as well as in
nomination
paper,
the
applicantrespondent has clearly mentioned and
declared that he is a candidate of
Bhartiya Janta Party. He was set up by
the Bhartiya Janta Party and proof in this
regard in the form of symbols etc. as given
by the National President and the State
President were also filed before the
Returning Officer. Therefore, mention of
the words 'Bahujan Samaj Party' in Part-B,
Clause 11(4) of the affidavit in Form-26, is
by inadvertence and has no consequence.

(xxxviii)
Averments
in
paragraphs-32 and 33 of the election
petition are the allegation of corrupt
practice which is not a ground in the
present election petition. The pleading so
made are vague and frivolous. Objection
in this regard has been taken in paragraph18 of the Application A-9.

(xxxix) Clause (6A) in Form-26
(Affidavit) was inserted by amendment
dated 10.10.2018 (Pages-115 to 121) of
the election petition which requires a
candidate to give full and upto date
information to his political party about all
pending criminal cases against him and all
cases of conviction as given in paragraphs5 and 6 in Form-26 of affidavit. This
clause (6A) is referable to Forms-C1, C2
1 All. Rangnath Mishra Vs. Shri Ramesh Chand
859
and C3, which are not part of affidavit
and which are supplied to a candidate
along
with
nomination
paper
for
submission to his political party. The
words 'Not Applicable' as per instructions
printed just below the said clause requires
merely a candidate to whom this was not
applicable. The candidate to whom it is
applicable, need not to write any thing in
Clause (6A) inasmuch as he had to make a
declaration in the form C1, C2 and C3 to
his political party.

(xl) Pleadings in paragraphs-35
to 41, 43 to 49, 52 to 53 are vague and do
not disclose material facts. Objection in
this regard has been taken in the relevant
paragraphs of the Application A-9.

(xli) Clauses left blank in Part3A of the nomination papers were not
required to be filled inasmuch as in the
preceding
clause,
the
applicantrespondent has mentioned 'No'. The
further clauses were required to be filled
only if the answer was in 'Yes'. Therefore,
the averments made in paragraph-41 of the
election petition are wholly vague and do
not disclose any material facts.

(xlii)
For
the
purposes
of
Application A-9 under Order VI Rule 16,
C.P.C., only the pleadings are to be seen
and not the arguments. On bare reading of
the pleadings made in the election petition,
it is evident that it does not disclose
material facts or cause of action.

13. Sri N.K. Pandey, learned
counsel
for
the
election-petitioner
submits as under:-

(i) In none of the paragraphs of
the Application A-9 and A-10, the
applicant-respondent has pointed out or
stated that which paragraphs of the
election petition are unnecessary or
vexatious and how they are unnecessary or
vexatious.

(ii) The applicant respondent has
not mentioned in his application that
which material facts are lacking in the
election petition.

(iii) The requirements of valid
nomination paper are given in Section 33
of the Act, 1951, which were not complied
with by the respondent winning candidate.
The affidavit was filed in old formate and
not in the revised prescribed formate as
circulated by the Election Commission of
India, vide circular dated 28.02.2019
(Annexure-6 to the election petition).

(iv) The affidavit in Form-26
filed
by
the
applicant-respondent
suffered from the following defects:-

(a) Newly added clause (6A) is
missing

(b) In clause 10 of Part-A of the
affidavit, description of the educational
qualification has not been given and
although it has been mentioned in Part-B
Clause 11 of the affidavit.

(c) In part-B clause 11, the name
of constituency and number has been
wrongly mentioned as 397 Majhawa Uttar
Pradesh instead of 78 Parliamentary
Constituency, Bhadohi.

(d) In Part-B clause 11(4), the
name of political party has been mentioned
as Bahujan Samaj Party.

(e) In Part-B Clause 11(7)(ga)
regarding last income tax return of
dependants has been left blank.

(v) The Election Commission of
India has issued orders, instructions and
circulars in exercise of powers conferred
under Article 324 of the Constitution of
India. But para 5.2 of the said circular
contained in the handbook for returning
officer, has not been followed.

(vi) The election petitioner has
filed this election petition on the grounds
860 INDIAN LAW REPORTS ALLAHABAD SERIES
as provided under Section 100(1)(c) and
Section 100 (1)(d)(i) and (iv), which are
existing in the present election petition on
the basis of material facts stated therein.
Therefore, the pleadings cannot be struck
off as prayed in Application A-9 and the
election petition cannot be dismissed
under Order VII Rule 11(a), C.P.C. as
prayed in Application A-10. Both the
applications deserve to be rejected.

(vii) Since the election petitioner
has complied with the provisions of
Sections 81 and 82 of the Act, 1951,
therefore, the election petition cannot be
dismissed in view of provisions of Section
86 of the Act.

(viii) The concise statement of
facts relating to Grounds (A), (B) and
(C) have been given in different
paragraphs of the election petition, as
under:

Releva
nt
Paragr
aphs of
electio
n
petitio
n
Ground
(A) under
Section
100(1)(d)(i
)
Ground
(B)
under
Section
100(1)(c)
Ground (C) under
Section
100(1)(d)(iv)
Paras-19 to
21, 26 to
43 and 46
to 52
Paras-24, 25,
44, and 45
Para-53

(ix) Paras 1 to 16 are relevant as
it contain general information relating to
the Parliamentary Election, 2019.

(x)
While
rejecting
the
nomination of paper, another candidate
Shrikant, no opportunity was afforded to
him under the proviso to Section 36(5) of
the Act, 1951 so as to rectify the errors
whereas opportunity was afforded to the
respondent winning candidate. This shows
that the returning officer adopted dual
standard.

(xi) While considering primary
objection as raised in Applications A-9
and A-10, only pleadings are to be seen
as per provisions of Order VI Rule 2 and
Order VII Rule 14, C.P.C.

(xii) In Part 3-ka of nomination
paper in Form 2A, the clauses- 3, 4, 8 and
9, have been left blank. Therefore, the said
nomination
paper
of
the
applicantrespondent
winning
candidate
was
incomplete and was improperly accepted
by the returning officer.

(xiii) Forms C-1, C-2 and C-3,
were left blank by the respondent winning
candidate.

(xiv)
The
District
Election
Officer made a communication to the
Chief Electoral Officer, Uttar Pradesh
Lucknow dated 25.04.2019 that in Partkha at serial No.4 of the affidavit, the
applicant respondent/ winning candidate
has mentioned Bahujan Samaj Party
whereas in Part ka at Serial No.1 of the
said affidavit. Along with the nomination
paper he filed Form-A issued by Sri Amit
Anil
Chandra
Shah,
the
National
President of Bhartiya Janta Party and
Form-'B' issued by Dr. Mahendra Nath
Pandey, State President of the Bhartiya
Janta Party mentioning the applicantrespondent to be the candidate of the
Bhartiya Janta Party. None objected to the
aforesaid news at the time of scrutiny of
the nomination paper. Therefore, the
nomination
paper
of
the
applicant
respondent was valid. The news item with
regard to mentioning of Bahujan Samaj
Party by the applicant respondent in
Clause 4 Part-kha of From 26, was
published in the newspaper 'Amar Ujala'
Varanasi Edition on 26.04.2019 in which it
was mentioned that the election petitioner
is the candidate set up by the Bahujan
Samaj
Party.
The
electors
of
the
constituency read the newspaper Amar
Ujala which created doubts and confusion
amongst
weaker,
down-trodden
and
illiterate people of constituency, specially
1 All. Rangnath Mishra Vs. Shri Ramesh Chand
861
of Scheduled Caste community, who voted
in favour of the applicant-respondent in all
five
assembly
of
78
Parliamentary
Constituency, Bhadohi, that the returned
candidate, i.e. the applicant-respondent is
set up by Bahujan Samaj Party. Therefore,
the communication made by the District
Election Officer, Bhadohi to the Chief
Electoral Officer, U.P. Lucknow dated
25.04.2019 that the matter came to his
notice through media, was incorrect
inasmuch as the election petitioner has
sent a letter dated 24.04.2019 to the
District
Election
Officer,
Bhodohi,
Observer, 78 Parliamentary Constituency,
Bhadohi, the Chief Electoral Officer, U.P.
Lucknow
and
the
Chief
Election
Commission of India, New Delhi by
registered post on 25.04.2019 at 17:17
hours from Allahabad. This objection was
also submitted before the Returning
Officer at the time of scrutiny but no
acknowledgement was taken.

(xv) In paragraph-53 of the
election petition, the election petitioner has
mentioned the provisions of the R.P. Act,
1951, the Conduct of Elections Rules, 1961
and the orders, guidelines and instructions
issued by the Election Commission of India
from time to time, to have been violated by
the applicant-respondent, which resulted in
improper acceptance of nomination paper by
the returning officer.

(xvi) Although clause (b) of subSection (2) of Section 36 of the Act, 1951
provides for rejection of nomination paper
on failure to comply with any of the
provisions of Sections 33 or 34 of the Act,
yet for deficiency in the affidavit in
Form-26 under Section 33A read with
Rule 4A, the nomination paper was
liable to be rejected as also held by
Hon'ble Supreme Court in Resurgence
India vs. E.C.I. And another, AIR 2014
SC 344 (Paras-13, 14, 18, 19, 20 and 27).

(xvii)
Once
it
has
been
established that the nomination paper of
the
applicant-respondent/
winning
candidate was improperly accepted by the
returning officer, there is no requirement
to prove that the result of the election of
the
returned
candidate
is
materially
affected. Reliance is placed upon the
judgment of Hon'ble Supreme Court in Sri
Mairembam Prithviraj alias Prithviraj
Singh vs. Sri Pukhrem Sharat Chandra
Singh, AIR 2016 SC 5087 (Paras-8, 20,
19, 22 and 23).

(xviii) Pleadings has to be read
as a whole and not in isolation. Reliance is
placed upon the judgment of Hon'ble
Supreme in Udhav Singh vs. Madhav
Rao Scindia, (AIR 1976 SC 744) (para
30).

(xix) An election petition or a
suit cannot be dismissed on the ground
that
the
pleadings
are
weak.
The
submission of learned counsel for the
applicant-respondent/ winning candidate
merely
illustrates
that
allegedly
the
pleadings are weak. Therefore, the election
petition cannot be dismissed on this
ground. Learned counsel for the applicant
has contradicted to it and said that it is not
the argument of the applicant-respondent
that the pleadings are weak rather it was
submitted that it does not contain material
facts relatable to Grounds (A), (B) and
(C).

(xx) Cause of action is a bundle
of facts which are required to be proved
for obtaining relief and for which the
material facts are required to be stated but
not the evidences. Reliance is placed on
the judgment of Hon'ble Supreme court in
Mayar (H.K.) Ltd. Vs. Owners &
Parties Vessels M.V Fortune Express &
others, 2006 (3) SCC 100 (Paras-11, 12
and 18), Sopan Sukhdeo Sable vs.
Assistant Charity Commissioner &
862 INDIAN LAW REPORTS ALLAHABAD SERIES
others, 2004 (3) SCC 137 (Paras-17, 18
and 19), D. Ramachandran vs. P.V.
Jankiraman and others, JT 1999 (2) SC
94 (Paras-8, 9 and 10) and Sri H.D.
Revanna vs. Sri G. Putta Swami Gowda
and others, JT 1999 (1) SC 126 (para27).

(xxi)
Pleadings
of
election
petition are not required to be deleted
under Order VI Rule 16, C.P.C. The
reliance is placed upon the judgment of
Hon'ble Supreme Court in Madiraju
Venkata
Ramana
Raju
vs.
Peddireddigari Ramachandra Reddy
and others, AIR 2018 SC 3012 (Paras10, 11, 14, 22, 24, 25, 29, 30 and 33).

DISCUSSION AND FINDINGS:

14. I have carefully considered the
submissions of learned counsels for the
parties.

15. Before I proceed to examine rival
submissions, it would be appropriate to
reproduce relevant provisions of the Act,
1951 and the Conduct of Elections Rules,
1961 (hereinafter referred to ''The Rules,
1961') and settled legal position on the
point of material facts, striking out
pleadings and rejection of election petition
under Order VII Rule 1, C.P.C. The
relevant provisions of the Act, 1951, the
Rules 1961 and C.P.C. are reproduced
below:

"(A)- The Representation of
People Act, 1951

"Section 33. Presentation of
nomination paper and requirements for a
valid nomination. --(1) On or before the
date appointed under clause (a) of section
30 each candidate shall, either in person
or by his proposer, between the hours of
eleven O'clock in the forenoon and three
O'clock in the afternoon deliver to the
returning officer at the place specified in
this behalf in the notice issued under
section 31 a nomination paper completed
in the prescribed form and signed by the
candidate and by an elector of the
constituency as proposer :

Provided that a candidate not set
up by a recognised political party, shall
not be deemed to be duly nominated for
election form a constituency unless the
nomination paper is subscribed by ten
proposers
being
electors
of
the
constituency:

Provided
further
that
no
nomination paper shall be delivered to the
returning officer on a day which is a
public holiday:

Provided also that in the case of
a
local
authorities'
constituency,
graduates'
constituency
or
teachers'
constituency, the reference to "an elector
of the constituency as proposer" shall be
construed as a reference to ten per cent of
the electors of the constituency or ten such
electors, whichever is less, as proposers.

(1A)
Notwithstanding
anything
contained in sub-section (1) for election to the
Legislative Assembly of Sikkim (deemed to be
the Legislative Assembly of that State duly
constituted under the Constitution), the
nomination paper to be delivered to the
returning officer shall be in such form and
manner as may be prescribed :

Provided
that
the
said
nomination paper shall be subscribed by
the
candidate
as
assenting
to
the
nomination, and--

(a) in the case of a seat reserved
for Sikkimese of Bhutia-Lepcha origin,
also by at least twenty electors of the
constituency as proposers and twenty
electors of the constituency as seconders;

(b) in the case of a seat reserved
for Sanghas, also by at least twenty
1 All. Rangnath Mishra Vs. Shri Ramesh Chand
863
electors of the constituency as proposers
and at least twenty electors of the
constituency as seconders;

(c) in the case of a seat reserved
for Sikkimese of Nepali origin, by an
elector of the constituency as proposer:

Provided
further
that
no
nomination paper shall be delivered to the
returning officer on a day which is a
public holiday.

(2) In a constituency where any
seat is reserved, a candidate shall not be
deemed to be qualified to be chosen to fill
that seat unless his nomination paper
contains a declaration by him specifying
the particular caste or tribe of which he is
a member and the area in relation to
which that caste or tribe is a Scheduled
Caste or, as the case may be, a Scheduled
Tribe of the State.