- (1.) This petition is directed against the order dated 18.9.2018 passed by the Election Tribunal/ IInd Additional District and Sessions Judge, Muzaffarnagar in Election Petition No.523 of 2017 (Smt.Ritu Jain vs. Uttar Pradesh and 24 Ors), whereby the Election Petition has been rejected under Order 7 Rule 11 C.P.C. read with Section 20(1) and 22(1) of U.P. Municipalities, 1916. The Election Petition No.523 of 2017 was presented by the petitioner challenging the Election of respondent no.5 (hereinafter referred to as returned candidate). On the presentation of the Election Petition, the returned candidate, before filing of his reply, filed two applications paper no.144Ga under Order 6 Rule 16 C.P.C. and paper no.146 Ga (Order 7 Rule 11 C.P.C.). The application paper no.144Ga has been rejected on the ground that the pleadings of the Election Petition are not unnecessary, scandalous, frivolous and vexatious, which, may cause prejudice, embarrassment or delay in the fair trial of the Election Petition nor the pleadings amount to abuse of process of the Court.
(2.) It is contended by the learned counsel for the petitioner that once the Election Tribunal had reached at the conclusion that the pleadings in the Elections are not unnecessary, vexatious or abuse of process of Court, it could not have rejected the Election Petition under Order 7 Rule 11 C.P.C. on the ground that the "material facts" had not been disclosed, therein. There is serious contradiction in the order dated 18.9.2018 passed by the Presiding Officer, Election Tribunal, who on the one hand, had dismissed the application 144Ga under Order 6 Rule 16 C.P.C. and allowed the application 146Ga under Order 7 Rule 11 C.P.C.
(3.) The averments in the Election Petition had been placed before the Court to vehemently submit that the material facts, sufficient to disclose the cause of action for challenging the election of the returned candidate have been disclosed in the Election Petition. The petitioner had contested the Election of Chairman of the Nagar Palika Parishad, Khatauli, Muzaffarnagar, held on 26.11.2017. In different polling booths, total votes were 37452, 45 votes were received through post which were casted by the Government Servants who were engaged in the Election duty i.e, the total votes casted became 37497 (37452+45). The counting of votes was conducted on 1.12.2017, during the process of counting, total (36629 valid and 836 invalid) votes were counted. The proforma 38 containing the result of election had been filed as Annexure-'3' to the Election Petition. The irregularities conducted during the course of counting have been specifically narrated in paragraph '8' and '9' of the Election petition, In paragraph '8', it was categorically stated that in different booths, less votes were counted than those were casted or polled. In paragraph '9', it was specifically pointed out that in four booth nos. 10, 11 , 12 and 13, total five votes were found extra in the counting process. As a result of it, 32 votes in total were counted less, that means total votes casted were 37497 whereas total votes counted in the process were 37465 (36629 valid + 836 invalid). It is contended that the said irregularity was brought to the notice of the Returning Officer by writing letter/ applications on 1.12.2017 itself, soon after completion of four rounds of counting. These applications have been appended as Annexure no.'5/1, 5/6' to the election petition. The Election petitioner and their polling agents had raised dispute before the counting officers orally and when they did not pay heed to the objections of the petitioner and her agents, they refused to sign Form 38 ie. counting sheet.;