S.K.MISHRA,J. - (1.) The Election Petition has been filed by Kishore Kumar Mohanty, who was the unsuccessful candidate for General Election of the State Assembly of the year 2014 (hereinafter the said Kishore Kumar Mohanty will be referred to as the "Election Petitioner" for brevity). He has filed this Election Petition, inter alia, assailing the election of Naba Kishore Das, who is opposite party no.1 in the Election Petition and petitioner in the Misc. Case (hereinafter referred to as the "Returned Candidate" for brevity) on the ground that the difference between the vote cast in favour of the Returned Candidate and the Election Petitioner is 11, 551 whereas the 3rd candidate namely, Anand Pradhan, i.e. opposite party no.2, who shall be referred to as respondent no.2 in the order, has secured 21,060 votes. It is further alleged by the Election Petitioner that respondent no.2 has secured disproportionately high percentage of votes from the margin of votes cast in favour of the Election Petitioner and the Returned Candidate, the Court should pronounce a verdict in favour of Election Petitioner and the acceptance of wrong/erroneous nomination of respondent no.2 has materially affected the result of the election under Section 100 (1)(d) (i) of the Representation of Peoples Act, 1951 (hereinafter referred to as the "R.P. Act" for brevity). After appearance of the parties and filing written statement, the Returned Candidate filed an application under Order-VI, Rule 16 and Order-VII, Rule-11 of the Civil Procedure Code, 1908(hereinafter referred to as the "Code" for brevity) to strike out certain portion of the pleading i.e., paragraphs 6(A) to 6(C) and to declare that the Election Petition does not constitute a cause of action and for absence of cause of action, the Election Petition should be rejected.
(2.) Mr. Upendra Kumar Samal, learned counsel for opposite partyno.1, would argue that in paragraph-6(A) of the Election Petition, it has been stated that on verification of the electoral roll it was found that the name of respondent no.2 has been deleted and the acceptance of nomination is improper. In paragraph-6(B) it has been stated that the Election Petitioner has secured 63, 152 votes, Respondent No.1(Returned Candidate) has secured 74,703 votes and Respondent No.2 has secured 21,060 votes. Respondent No.1(Returned Candidate) has declared as elected by defeating the Election Petitioner with a margin of 11,551 votes. In pargagraph- 6(C) of the Election Petition, it has been stated that the vote got by Respondent No.2 as a BJP candidate would have gone in favour of the Election Petitioner, as he contested the election on behalf of Biju Janata Dal (hereafter referred to as the "BJD Party").
(3.) The main ground on which the Election Petitioner challenges the election of the Returned Candidate is that Respondent No.2 is not an elector of 7-Jharsuguda Constituency and the electoral roll filed by him revealed that he is an elector of the said constituency, but later on that entry in the electoral roll has been deleted. Therefore, it was argued that the nomination of Respondent No.2 has been accepted improperly and such improper acceptance has led to a situation that the votes cast in his favour would have gone in favour of the Election Petitioner as those votes are anti-congress/Indian National Congress. On the basis of those two aspects, the Election Petitioner challenges the election of the Returned Candidate.;