Hon'ble RATHORE, J. - (1.) THIS writ petition is directed against the order dated 16/8/2005 passed by the District & Sessions Judge, Sikar (Election Tribunal) by which the application filed under Order 7 Rule 11 by the petitioner for rejecting the election petition has been dismissed.
(2.) THE petitioner has challenged the impugned order on the ground that the election petition does not disclose any cause of action to the election petitioner. THE election petition is based on vague facts and no particular with regard to fraud and illegality was given in the election petition. In support of his submissions, learned counsel placed reliance on the judgment in case of Lalit Kishore Chaturvedi vs. Jagdish Prasad Thada & Ors. 1990 Supp. SCC 248 wherein the Hon'ble Supreme Court has held as under: "an election petition filed under Section 81 is required by Section 83 (1) to contain concise statement of the material facts on which petitioner relies. Statutory compulsion visualised by Section 83 (1) (b) to set forth full particulars of corrupt practice including names of persons, time and place, is to be construed strictly and absence of precise and specific pleading will render an election petition infirm. However, the submission that an election petition could be dismissed, apart from merit, only for one of the reasons mentioned in Section 86 (1) is devoid of any substance. Dismissals visualised under Section 86 (1) are for lack of verification or presentation of petition beyond time or for defect in joinder of parties or for non-deposit of security for costs. These are defects in frame or presentation of petition. On the other hand dismissal for failure to disclose cause of action under Order VII Rule 11 of CPC is in course of trial. The fact that Section 83 does not find place in Section 86 does not mean that powers under CPC cannot be exercised. If the claim on the pleadings in the election petition filed under Section 83 read with Section 100 of the Act does not raise any triable issue, then the petition is liable to be dismissed under Order VII Rule 11, Code of Civil Procedure. In the present case the petition did not fulfil the requirement of Section 83 (1) (b) and was liable to be dismissed under Order VII Rule 11, CPC." Learned counsel for the petitioner referred Section 83 (1) (b) of Representation of Peoples Act by which it is provided that contents of petition shall set forth full particulars of any corrupt practice that the petitioner alleges, including as full a statement as possible of the names of the parties alleged to have committed such corrupt practice and the date and place of the commission of each of such practice. In case of Samar Singh vs. Kedar Nath & Ors. AIR 1987 SC 1926, the Hon'ble Supreme Court has held as under: "if an election petition does not disclose cause of action, it can be dismissed summarily at the threshold of the proceeding under Order 7 Rule 11 of the Code of Civil Procedure. If an election petition can be summarily rejected at the threshold of the proceeding the same can also be rejected at any stage of subsequent proceeding. If after framing of issues basic defect in the election petition persists (absence of cause of action) it is always open to the contesting respondent to insist that the petition be rejected, under Order 7 Rule 11 and the Court would be acting within its jurisdiction, in considering the objection. Order 7 Rule 11 does not place any restriction or limitation on the exercise of Court's power; it does not either expressly or by necessary implication provide that power under Order 7 Rule 11 CPC should be exercised at a particular stage only. In the absence of any restriction placed by the statutory provision, it is open to the court to exercise that power any state." In case of Azhar Hussain vs. Rajiv Gandhi in AIR 1986 SC 1253, the Hon'ble Supreme Court has held as under: "an election petition can be and must be dismissed under the provision of Civil P. C. If the mandatory requirements enjoined by Section 83 to incorporate the material facts and particulars relating to alleged corrupt practice in the election petition are not complied with. The Code of Civil Procedure applies to the trial of an election petition by virtue of Section 87 of the Act. Since CPC is applicable, the Court trying the election petition can act in exercise of the power of the Code including Order 6 rule 16 and Order 7 Rule 11 (a). Therefore that section 83 does not find a place in Section 86 of the Act which authorises dismissal of election petitions in certain contingencies does not mean that powers under the CPC cannot be exercised. An election petition can be summarily dismissed if it does not furnish cause of action in exercise of the powers under the Civil P. C. And it is settled law that the omission of a single material fact would lead to an incomplete cause of action and that an election petition without the material facts relating to a corrupt practice is not an election petition at all.
(3.) HAVING considered the submissions made on behalf of the petitioner and perused the relevant provisions of CPC as well as judgments referred before me. As per Order 7 Rule 11 of CPC, a plaint can be rejected on the ground (a) where it does not disclose a cause of action; (b) where the relief claimed is under-valued and the plaintiff, on being required by the Court to correct the valuation within a time to be fixed by the court, fails to do so; (c) where the relief claimed is properly valued but the plaint is written upon paper insufficiently stamped, and the plaintiff, on being required by the Court to supply the requisite stamp-paper within a time to be fixed by the Court, fails to do so; (d) where the suit appears from the statement in the plaint to be barred by any law; (e) where it is not filed in duplicate and (f) where the plaintiff fails to comply with the provisions of rule 9. The Election Tribunal while dealing with the application under Order 7 Rule 11 in para 4 & 5 observed as under: ...[Vernacular Text Ommited]... ;