Surya Prakash Kesarwani, J. - (1.) Heard Sri N. K. Pandey along with S. A. Kazmi, learned counsel for the respondent-objector and Sri Navin Sinha, learned Senior Advocate assisted by Ms. Kalpana Sinha, learned counsel for the Election-petitioner on the following applications:- (i) Paper No. A-11 being application no. 3 of 2018 under Section 151 C.P.C. praying to dismiss the election petition as not maintainable under Section 86(1) of the Representation of People Act, 1951. (ii) 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 praying to struck off paragraph nos. 7 to 28 of the election petition and to dismiss the election petition for want of cause of action under the provision of order 7 Rule 11(a) C.P.C. With the consent of learned counsels for the parties both the applications are being heard together for disposal. Submission of the applicant/respondent-objector:-
(2.) Learned counsel for the applicant/respondent-objector submits as under: (i) Copy of news item dated 28.01.2017 as referred by the election petitioner in the representation dated 28.01.2017 filed before the Returning Officer has not been filed along with the election petition. Page No. 37 of the original election petition, which is the reverse page of the stamp paper bearing seal of the Stamp Vendor, has not been annexed with the copy of the election petition served upon the respondent-objector. Therefore, the copy of the election petition served upon the respondent-objector can not be said to be true copy of the election petition. Therefore, the election petition deserves to be dismissed as per the provisions of Section 86(1) of the Representation of People Act, 1951. (ii) The election petitioner has stated in Paragraph 25 (iii) and (iv) of the election petition that the respondent-objector has filled-up the examination form and admission form while appearing in Class X examination conducted by CBSE Board, 2007. He has sworn the said paragraph on the basis of record. Therefore, he must have filed copies of the examination form and the application form along with the election petition which has not been done. Thus, the election petition has been filed without annexing material documents and in the absence thereof, the election petition cannot be said to be true copy of the election petition in view of the law laid down by the Hon'ble Supreme Court in U. S. Sasidharan v. K. Karunakaran and another, 1990 AIR(SC) 924 (para 15, 16 and 17). (iii) No cause of action arose to the election petitioner to file the election petition, since the date of birth of the respondent is 30.09.1990 and at the time of filing of the nomination form, he had attained the age of 25 years in terms of the provisions contained in Article 173(b) of the Constitution of India. Thus, in absence of any cause of action, the election petition deserves to be dismissed under Order VII, Rule 11(a) C.P.C. and the pleadings made by the election petitioner deserves to be struck off under Order VI, Rule 16 C.P.C.
(3.) In support of his submissions Sri Pandey has relied upon the judgments of Hon'ble Supeme Court in Rajendra Singh v. Usha Rani, 1984 3 SCC 339, Mithilesh Kumar Pandey v. Baidyanath Yadav and others, 1984 2 SCC 1 (para 9, 15 and 17), M. Karunanidhi v. H. V. Handa and others, 1983 AIR(SC) 558 (para 13, 27 and 38 to 42), Jyoti Basu and others vs. Debi Ghosal and others, 1982 AIR(SC) 983 (1) (para 7 and 8), Mulayam Singh Yadav v. Dharampal Yadav and others, 2001 5 Supreme 242 (paras 7, 11, 12 and 13) and a judgment of this Court passed by learned Single Judge, dated 10.02.1992 in Election Petition no. 6 of 1991( Jagram Singh v. Pritam Singh and others). Submission of the Election Petitioner.;