D.P.SINGH,J. - (1.) HAZARI filed on behalf of the petitioner to be examined as the first witness in this Election Petition. Case called out.
(2.) AT this stage the learned Counsel for the respondent Sri Pandey requests that I.A. No. 1388 of 2007 regarding the maintainability of the Election Petition in its present form may be taken up first. With consent of the counsels I.A. No. 1388 of 2007 is taken up for hearing on merit. According to this I.A., the present Election Petition was not maintainable mainly on the grounds that the facts brought on record and pleaded by the petitioner do not disclose any corrupt practice has resulted in election of the respondent. It is stressed that all such Election Petitions must discloses on facts pleaded specifically to show that any corrupt practice has been adopted and mere pleading that EVM did not function properly for sometime on 15.2.2005 could not mean that such non functioning of the EVM have resulted in defeat of the petitioner.
(3.) ACCORDING to Sri Pandey, these allegations do not fulfilled the requirements of law as laid down under Section 100(1)(d)(ii) of the Act. According to him, all the assertions tempering of the EVM do not disclose as to when, where and by whom the said machines were tampered resulting in any prejudice to the election. So far allegation of mal practice asserted in form 25 and supported by affidavit that the polling agent of the petitioner was assaulted at booth No. 63 by the respondent dated 15.2.2005, made after the elections were over. As such the whole Election Petition is fit to be rejected being not maintainable. In support of this contention Sri Pandey relied upon 2000 (1) SCC 481.;