# Smt. Veena Agrawal v. Addl. District Judge, Court No.2, Moradabad and others

- **Citation:** (2003) 1 ILRA 40
- **Court:** High Court of Judicature at Allahabad
- **Decided:** 2002-12-03
- **Case number:** Civil Misc. Writ Petition No. 51091 of 2002
- **Bench:** Anjani Kumar, Anjani Kumar
- **Source:** https://unisonlegal.in/judgment/allahabad-high-court/smt-veena-agrawal-v-addl-district-judge-court-no-2-moradabad-and-others-40054
- **Pages:** 5

## Headnote

Code of Civil Procedure :- Order 10 rule 2
Election Petition filed on allegations of
corrupt practices and in counting in has
settlement
denied
the
allegations
regarding
irregularities
and
corrupt
practices - application under order 7 rule
11 C.P.C. to reject the plaint thrown
rejected held rejection order proper the
election petitioner has right of challenge
on all grounds can not be threes on
technical grounds.

Held ( Para 11)

A misplaced anxiety of the election
petitioner
to
press
her
claim
and
expediency of recount, will not take
away, abridge or destroyed the effect of
pleadings giving her cause of action to
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1 All] Smt. Veena Agrawal Vs. Addl. District Judge, Court No.2, Moradabad and others
41
file and purpose the election petition. A
statement given under Order 10 Rule 2
has to be read as a whole. A part of it
cannot be torn out of context to be used
against her.
Case law discussed.
AIR 1962 111, AIR 1983 Alld-450m 2001 (W)
ALR 527, 1983 UPLBEC-672, AIR 1997 SC1926, AIR 1954 SC-686, AIR 1995 Bomby.
227, AIR 1987 SC-1577

## Text

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40 INDIAN LAW REPORTS ALLAHABAD SERIES [2003
ORIGINAL JURISDICTION
CIVIL SIDE
DATED: ALLAHABAD 3.12.2002

BEFORE
THE HON'BLE ANJANI KUMAR, J.

Civil Misc. Writ Petition No. 51091 of 2002

Sheela Devi

...Petitioner
Versus
State of U.P. and others ...Respondents

Counsel for the Petitioner:
Sri Vivek Dubey

Counsel for the Respondents:
S.C.

Constitution of India, Article 226- scope
of
mandamus-
petitioner
seeking
direction-
for
enforcement
of
the
direction for appointment issued by the
Energy Minister- Petitioner neither has
enforceable
right
nor
legal
right-
mandamus cannot be issued.

(Delivered by Hon'ble Anjani Kumar, J.)

1. Petitioner by means of this writ
petition, sought for a writ of mandamus
commanding the respondent No. 2 to
consider
the
representation
of
the
petitioner dated 3.8.2002 addressed to
Ram Veer Upadhyaya, Energy Minister,
U.P.
Government
pursuant
to
the
direction dated 13.10.2002 issued by the
said minister. The said Minister issued a
direction to appoint the petitioner on a
particular post. Needless to say that this
will be an appointment contrary to the
rules. Petitioner has sought for a writ of
mandamus. A mandamus can only be
issued if the petitioner has an enforceable
right and respondents are under legal
obligation. None of the two ingredients
are there for issuance of mandamus.

2. In this view of the matter, no
relief can be granted to the petitioner. The
petition is dismissed being devoid of any
merit.
---------
ORIGINAL JURISDICTION
CIVIL SIDE
DATED: ALLAHABAD :10.12.2002

BEFORE
THE HON'BLE SUNIL AMBWANI, J

Civil Misc. Writ Petition No. 21978 of 2002

Smt. Veena Agarwal

...Petitioner
Versus
Additional District Judge, Court NO.2
Moradabad and others ...Respondents

Counsel for the Petitioner:
Sri Prakash Krishna
Sri Kshitij Shailendra

Counsel for the Respondents:
Sri S.P. Shukla,
Sri R.K. Khanna,
Sri S.P. Srivastava

Code of Civil Procedure :- Order 10 rule 2
Election Petition filed on allegations of
corrupt practices and in counting in has
settlement
denied
the
allegations
regarding
irregularities
and
corrupt
practices - application under order 7 rule
11 C.P.C. to reject the plaint thrown
rejected held rejection order proper the
election petitioner has right of challenge
on all grounds can not be threes on
technical grounds.

Held ( Para 11)

A misplaced anxiety of the election
petitioner
to
press
her
claim
and
expediency of recount, will not take
away, abridge or destroyed the effect of
pleadings giving her cause of action to
http://www.allahabadhighcourt.nic.in
1 All] Smt. Veena Agrawal Vs. Addl. District Judge, Court No.2, Moradabad and others
41
file and purpose the election petition. A
statement given under Order 10 Rule 2
has to be read as a whole. A part of it
cannot be torn out of context to be used
against her.
Case law discussed.
AIR 1962 111, AIR 1983 Alld-450m 2001 (W)
ALR 527, 1983 UPLBEC-672, AIR 1997 SC1926, AIR 1954 SC-686, AIR 1995 Bomby.
227, AIR 1987 SC-1577

(Delivered by Hon'ble Sunil Ambwani, J.)

1. Petitioner Smt. Veena Agarwal
has been elected to the post of Nagar
Pramukh, Nagar Nigam Moradabad City.
The polling counting and declaration took
place on 20.11.2000, 25.11.2000 and
26.11.2000 respectively. By an Election
Petition No. 14 of 2000, Smt. Asma
Aslam, respondent no. 2 has challenged
the election under section 61 of the U.P.
Nagar Nigam Adhiniyam. 1959, as
amended by U.P. Act No.12 of 2000 26 of
1995 ,8 of 1998, 17 of 1999 and 7 of
2000. for declaring of elections dated
26.11.2000 as illegal and void . The
election has been challenged on the
ground of corrupt practice adopted by
petitioner in the election, irregularities in
procedure of counting, and exercise of
undue influence by senior political
leaders, as well as illegality in counting
and illegal exclusion of the polling agents
of petitioner. Various other allegations
have also been made with regard to
counting and declaration of result, Upon
service of notice, petitioner filed an
application under sections 63,71,72 and
78 of Municipal Corporation Act, 1959
order 7 Rule 11 C.P.C. Order 6 Rule 5,
C.P.C. and Section 115 C.P.C. (39-ga)
and that by application dated 18.01.2001
petitioner prayed that she may be
permitted to file her written statement , if
required after the disposal of the aforesaid
application (39-ga), and if the first two
prayers are rejected, the alternative prayer
be allowed. An objection was filed by
election petitioner on 24.02.2001.

2. On 6.02.2002, election petitioner
respondent no.2 filed an application (67ga) stating that she is prepared to record
her statement under Order 10 Rule
2,C.P.C. for which a date may be fixed .
On 19.02.2002, she gave a statement
under Order 10 Rule 2 and signed the
same. The statement is quoted as below:.

"feys er i+=ksa dh x.kuk ls xM+cM+h gqbZ gS A
okLro esa eq>s tks er feys gS] mUgsa x.kuk esa de n'kkZ;s
x;s gSa A iquZx.kuk gksus ij eSa fot;h gksmWaxh A pquko
;kfpdk isij ua0 3 @x nsrh gwWa A dsoy lgh erx.kuk
ij iwjk ds'k vk/kkfjr j[krh gwWa A x.kuk esa fdl izdkj
gsjkQsjh dh] fdlus dh] bl fcUnq dks izsl ugha djrh
gwWaA

i<+dj rLnhd djrh gwWa A

g0 @& vLi"V vklek vLye "

3. On the same day an application
was
filed
by
petitioner
regarding
statement under Order 10 of Rule 2,
C.P.C. suggesting the following questions
to be put to elucidate the matter in
controversy:

(1) In what manner and what were the
illegalities or irregularities committed in
counting the votes?

(2) If any illegalities were committed,
who committed them?

(3) How many ballot papers were illegally
counted?

4. In view of the afore quoted
statement, the Court found that there is no
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42 INDIAN LAW REPORTS ALLAHABAD SERIES [2003
necessity of asking the election petitioner
to answer these questions and disposed of
the
application
accordingly.
On
06.03.2002, counsel for petitioner made
an application to reject the petition on the
ground that election petitioners statement
under order 10 Rule 2 has destroyed her
allegation made by her in her petition,
with regard to corrupt practices in
paragraphs 4 to 7 of the election petition
and that in the circumstance, there is no
need to file written statement Application
70-C. 70-D were also filed on 25.2.2002
to reject the election petition under
Section 69 of the U.P., Municipal
Corporation Act, 1959 read with order 7
Rule 11 C.P.C. By the impugned order,
the Election Tribunal/Additional District
& session Judge(Court No.2), Moradabad
had rejected application under Order 7
Rule
11, C.P.C. and has directed
petitioner to file written statement .He has
also rejected applications for deleting
paragraphs 4 to 17 and has observed that
the issues will be framed only after filing
written statement.

5. I have heard Sri Prakash Krishna
for petitioner and Sri S.P. Shukla for
contesting respondent no. 2.

6. Counsel for petitioner submits
that the statement of election petitioner
under order 10 rule 2 made by her
voluntarily on her own application has
taken away the effect of allegations of
corrupt practice, made in paragraphs to 17
of the election petition, and that she has
not pressed these allegations upon which
rest of allegation to challenge the election
do
not
survive.
He
submits
that
application under order 7 rule 11 can be
decided even before written statement is
filed if the election petition does not
discloses cause of action, and lacks
material
particulars
with
regard
to
allegation of corrupt practice. According
to him, nothing survives to decide
election petition and that the order of
recount cannot be made after the election
petitioner voluntarily made a statement
not
to
press
the
allegations

of
manipulations in the election which
includes corrupt practice.

7. Counsel for respondents, on the
other hand states that the purpose of
statement under Order 10 rule2 is only to
ascertain the issues which may be decided
in the suit. At the first hearing of the suit,
the Court with a view to elucidate the
matters in controversy in the suit can
examine orally the parties appearing in
person or present in court or may require
any person able to answer any material
questions relating to the suit, by whom
any party appearing in person or present
in court, or is pleaded is accompanied.
The statement under order 10 rule 2
cannot destroy the allegations in the plaint
and on that basis the plaint cannot be
rejected.

8. He submits that petitioner had
disclosed material particulars with regard
to corrupt practices, in the plaint and that
unless a written statement was filed, the
provisions of order 6 rule 5 and order 7
rule 11 C.P.C. cannot be pressed into
service.

9. The effect of statement under
order 10 rule 2 C.P.C. has been
considered by this Court in Amrita Devi
Vs. Sripat Rai, AIR 1962 Allahabad
111, where the trial court trying auction
for infringement of copyright found that
the plaintiffs counsel made a statement
under order 10 rule2, C.P.C. that the book
styled Nirmala was written by author
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1 All] Smt. Veena Agrawal Vs. Addl. District Judge, Court No.2, Moradabad and others
43
Prem Chandji while he was in the
employment or R. Saigal of the Chand
Press, Allahabad, under a contract of
service. Admission made by a party under
order 10 rule 2 ,C.P.C. was held to be
conclusive against him. A party cannot be
allowed to deviate from his pleadings.
The plaintiffs, it was held, could not
therefore be allowed to adduce evidence
in support of the alleged assignment of
copy right by Sri Prem Chandji, In Smt.
Kaniz Fatima Shah Naim Ashraf, AIR
1983 Alld.450 a Division Bench of this
Court held that it is primary duty of the
Court under Civil Procedure Code to see
that proper issues, necessary for decision
of the case, are framed. Even if the parties
fail to point out relevant issues to be
framed in the case or render no assistance
to court in the matter of framing issues, it
would not absolve the court from
discharging primary dusty cast on it for
framing proper issues on all the material
points arising out of the pleadings. If the
plaintiff in his statement under order 10
rule 2 of the court has specifically given
up a plea it cannot be shut down from
being placed and pressed during the
course of trial or in appeal, if it relates to
a crucial and material question of fact or
law . The matter was remanded with the
direction to the court below to proceed
and to frame issues which arose out of the
pleading of the parties and the statement
recorded under order 10 rule 2 of the
code. In Rasheed Ahmad Vs. Smt.
Kariman Khatoon, 2001 (45) ALR 527
it was held that the statements under order
10 rule 2 are for clarification of pleadings.
The value of statements under order 10
rule 2 cannot be set at naught by any
subsequent tutored statement given in
evidence. In Ram Pal Singh Vs.
Additional District Judge, Meerut and
others, 1983 UPLBEC 672, this court
found that where election petitioner gave
up all other please but continued his case
to counting of the votes, the order of
recount was illegal. There is consistency
of view in decided cases about the stage
in which the application under order 7
rule 11 can be filed. In Samara Singh Vs.
Kedar Nath and others, AIR 1997 SC
1926, Jamuna Prasad Mukhariya Vs.
Lachhi Ram and others, AIR 1954 SC
686; Mohan Rawale Vs. Damodar
Taryaba, 1994 ACJ 570(SC) and P.R.
Sukeshwala
and
another
Vs.
Dr.
Devadatta
Vs.
Kerkar
AIR
1995
Bombay 227, it has been held that the
trial court is always free to entertain an
application under Order 7 rule 11, CPC
even before the defendant files written
statement, if the plaint does not disclose
cause of action, or right of defendant to
challenge the maintainability of the suit,
irrespective of his rights to contest the
same on its merits. The defendant is
bound to file written statement only when
an application under Order 7 rule 11 is not
allowed
by
the
trial
court,
In
Dhartipakar Madan Lal Agarwal Vs.
Shri Rajiv Gandhi AIR, 1987 SC,1577
it was held that where election petitioner
does not disclose any cause of action, it is
liable to be struck off under Order 6 Rule
16 CPC as the court is empowered at any
stage of the proceedings to strike out or
delete pleadings which are unnecessary,
scandalous, frivolous or vexatious. If after
striking out pleadings, the court found
that no trial issues remain to be
considered, it has power to reject the
election petition under Order 6 Rule 17.

10. In the present case, the Court has
to find out effect of the statement of
election petitioner under order 10 rule 2,
CPC
recorded
on
her
request
on
19.02.2002. In case the entire statement is
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44 INDIAN LAW REPORTS ALLAHABAD SERIES [2003
taken into account, as quoted above, it is
found that the petitioner in the first
sentence stressed the fact that there were
irregularities in counting the votes. In the
second sentence, she stated that, in fact,
the number of votes polled in her favour
have been shown to be less in the
counting, and in case of recounting, she
would be declared winner. Thereafter she
stated that she is presenting paper (3ga)
which is the election petition. After this
statement, she proceeded to state that the
entire foundation of her case is correct
counting of votes, and that she does not
want to press the point of manipulation in
counting and the persons who committed
it. The cumulative effect of her entire
statement is that she pressed the election
petition and claimed that actual number of
votes polled in her favour have both been
reflected in the counting. She has founded
her entire claim of correct counting of
votes and not with regard to manipulation
in the counting and the persons who did
it. It cannot be said that by this statement,
she has given up the pleas of corrupt
practices in the election,. The last part of
her statement may have been given in an
anxiety of recounting without specifying
the particulars or allegations and naming
the persons. The statement, however,
cannot be taken to mean that she has
given up the pleas in the election petition
with regard to corrupt practices. A close
reading of the election petition shows that
material particulars have been given ,
both with regard to booth capturing,
procedure in counting, manipulations
made during process of counting of votes
in favour of the winning candidate. These
material particulars are still to be proved
by evidence to be adduced by her .

11. Without expressing any opinion,
whether the statement given by her does
or does not entitle her for recount of
votes, it cannot be said that the statement
destroys or takes away the effect of
allegations or irregularities made in her
statement. A misplaced anxiety of the
election petitioner to press her claim and
expediency of recount, will not take away,
abridge or destroy the effect of pleadings
giving her cause of action to file, and
pursue the election petition. A statement
given under order 10 Rule 2 has to be
read as a whole. A part of it cannot be
torn out of content to be used against her.
The petitioner may have a right to file an
application under Order 7 Rule 11, CPC.
before filing a written statement, but that
her statement under Order 10 Rule 2 CPC
could not have been taken into account to
make the entire pleadings in election
petition ineffective. The petitioner has a
right to challenge the same on all grounds
available to her, and that her challenge
cannot be thrown on technical grounds,
before she is given an opportunity to
substantiate the same on record.

In the facts and circumstances of the
case, the writ petition is dismissed.
---------
ORIGINAL JURISDICTION
CIVIL SIDE
DATED: ALLAHABAD 6th JANUARY, 2003

BEFORE
THE HON'BLE M. KATJU, J.
THE HON'BLE YATINDRA SINGH, J.

Civil Misc. Writ Petition No. 2989 of 2002

Gavendra Pal Singh and others

 ...Petitioners
Versus
Commissioner, U.P. Excise and others

 ...Respondents

U.P. Excise (Settlement of Licences for
Retail Sale of country liquors) Rules