Rajasthan High Court - Jodhpur

Jitendra Kumar vs Shri Vishvaraj Singh on 10 October, 2024

Author: Rekha Borana

Bench: Rekha Borana

[2024:RJ-JD:38133]

      HIGH COURT OF JUDICATURE FOR RAJASTHAN AT
                       JODHPUR


                      S.B. Election Petition No. 2/2024

Jitendra Kumar S/o Late Shri Nanuram Ji Khatik, Aged About 47
Years, (Assembly Candidate 2023 Assembly Area 176) R/o
Kumariya       Kheda,        Post    Namana,          Tehsil        Nathdwara,     Dist.
Rajsamand (Raj.)
                                                                          ----Petitioner
                                       Versus


1.       Shri Vishvaraj Singh S/o Shri Mahendra Singh Ji Mewad,
         (Assembly Candidate 2023 Assembly Area 176) / Mla
         Nathdwara, R/o Samor Bagh, Udaipur, Tehsil Girwa, Dist.
         Udaipur (Raj.)
2.       Smt. Mahma Kumari W/o Shri Vishawraj Singh Mewad, D/
         o Mahendra Singh Ji Mewad (Assembly Candidate 2023
         Assembly Area 176) , R/o Samor Bagh, Udaipur Tehsil
         Girwa, Dist. Udaipur (Raj.) 313001
3.       Shri C.p. Joshi S/o Bhudev Prasad Joshi, (Assembly
         Candidate 2023 Assembly Area 176) R/o House No. 42,
         Bagarwada,           Nathdwara,           Tehsil       Nathdwara,         Dist.
         Rajsamand (Raj.)
4.       Shri Babulal Salvi S/o Shri Bhura Salvi, (Assembly
         Candidate 2023 Assembly Area 176) R/o 214, Salvi
         Mohalla, Village Emdi, Tehsil And Dist. Rajsamand (Raj.)
5.       Shri Moti Singh Chadana S/o Shri Uday Singh Chadana,
         (Assembly Candidate 2023 Assembly Constituency 176)
         R/o    Ver     Ki    Bhagal,       Gaon,        Tehsil       Khamnor,     Dist.
         Rajsamand (Raj.)
6.       Dist. Election Officer/ Dist. Collector, Rajsamand, Tehsil
         And Dist. Rajsamand (Raj.)
7.       Returning      Officer/      Sub       Divisional          Officer,   Assembly
         Election, Nathdwara (176) - 2023, Tehsil Nathdwara, Dist.
         Rajsamand (Raj.)
8.       Chief Electoral Officer, Election Commission, Rajasthan
         State, Jaipur (Raj.)
                                                                      ----Respondents




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For Petitioner(s)         :     Mr. Jitendra Kumar Khatik, petitioner,
                                present-in-person
For Respondent(s)         :     Mr. Rajesh Joshi, Sr. Advocate
                                assisted by Ms. Kamini Joshi
                                Mr. Vinit Sanadhya with
                                Mr. Priyanshu Gopa



              HON'BLE MS. JUSTICE REKHA BORANA

Order

Reportable

10/10/2024

1. The matter has come upon an application under Order VII

Rule 11 of Code of Civil Procedure, 1908 (CPC) as preferred on

behalf of respondent No.1 for dismissal of the election petition.

2. The present election petition has been preferred by the

petitioner with the following prayers :

"(i) That the nominations of respondent numbers 1 and 3 to 5 may kindly be rejected and the Assembly elections 2023 may kindly be declared void and respondent numbers 1 and 3 to 5 may be declared ineligible to contest elections for the next 6 years.

(ii) That the result dated 3.12.2023 and nomination of respondent number 1 may kindly be canceled and or election may be declared void and the petitioner may be declared elected for the post of MLA of Assembly Constituency 176 (Nathdwara) and declared elected for a period of 5 years from the date of declaration.

(iii) Any other order or direction, which this Hon'ble Court considers just and proper in the interest of justice. Cost of the election petition may kindly be granted."

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3. The ground raised in the election petition is that respondents

No.1 & 3 to 5 had filed false affidavits in support of their

nomination papers and further, concealed material information in

the said affidavits which is in contravention to the specific

guidelines as issued by the Hon'ble Apex Court in the case of

Public Interest Foundation & Ors. Vs. Union of India & Anr.;

2019 (3) SCC 244 and further in Union of India Vs.

Association of Democratic Reforms and Anr.; (2002) 5 SCC

294.

4. An application under Order VII Rule 11, CPC has been

preferred on behalf of respondent No.1 with a specific averment

that the election petition neither reflect any fact or ground in

terms of Sections 100 & 101 of the Representation of the People

Act, 1951 (hereinafter referred to as 'the Act of 1951') nor does it

reflect any cause of action in compliance of Section 83 of the Act

of 1951. It has been averred that the complete plaint/petition

talks of wrong and incorrect particulars filed by respondent No.2 in

her affidavit, who did not even contest the election. There is not a

single averment of any wrong affidavit been filed by respondent

No.1, who was the returned candidate hence, the averments made

against respondent No.2 would be of no avail so far as respondent

No.1 is concerned.

5. It has further been averred that even if the pleadings as

made in the election petition are read as it is, the same does not

reflect any cause of action so as to maintain the present election

petition. The only averment made in the election petition is that

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there was a discrepancy in the particulars qua the income as

furnished by respondent No.1 and respondent No.2 who are the

husband and wife.

6. Learned Senior Counsel appearing for respondent No.1

submits that even if the particulars as furnished, are considered

on the face of it, there is no discrepancy, whatsoever, in both the

affidavits, as alleged by the petitioner. Further, even if any

incorrect statement has been made in the affidavit of respondent

No.2, she not being a candidate, any particulars furnished by her,

cannot even be considered in the present election petition.

7. Raising the second ground, learned Senior Counsel submitted

that the present election petition deserves to be dismissed even

on the count of mis-joinder of parties.

As per Section 82 of the Act of 1951, if a petitioner prays for

declaration that he himself or any other candidate be elected, all

the contesting candidates are to be impleaded as parties to the

election petition and where no such declaration is prayed for, the

returned candidate is to be impleaded. In the present matter,

respondent No.2 was neither a contesting candidate nor a

returned candidate. Therefore, she ought not to have been

impleaded in the present petition and the present petition

deserves to be dismissed on the sole ground of mis-joinder of

parties.

8. Learned Senior Counsel lastly submitted that firstly, there

was no discrepancy in the affidavits of respondents No.1 & 2 and

secondly, even if, it is assumed that there was any, as per Section

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36(4) of the Act of 1951, no nomination paper can be rejected on

ground of any defect which is not of substantial character.

9. In support of his submissions, learned counsel relied upon

the judgments in the cases of :

(i) Rehan Ahmed (D) thr. L.R.s Vs. Akhtar Un Nisa (D) thr.

L.R.s; AIR 2024 SC 2541,

(ii) Kanimozhi Karunanidhi Vs. A. Santhana Kumar & Ors.;

AIR 2023 SC 2366 and

(iii) Mahaveer Prasad Pareek Vs. Rampratap Kaslaniya and

Ors.; 2023 (4) RLW 3158 (Raj.).

10. Per contra, the petitioner, present-in-person, submitted that

the election of a returned candidate can be declared to be void, if

the Court reaches to a conclusion that result of the election of a

returned candidate has been materially affected by the improper

acceptance of any nomination. He submitted that as per Section

33A(2) of the Act of 1951, a candidate is under an obligation to

submit an affidavit sworn by him in a prescribed form, verifying

the information as specified in sub-section (1) of Section 33A,

along with his nomination paper.

Relying upon the above provisions, the petitioner submitted

that the affidavits as furnished by respondents No.1 & 2 were

totally false and incorrect as the particulars given in the said

affidavits clearly varied whereas the same could not have varied,

respondents No.1 & 2 being the husband and wife.

11. So far as respondents No.3 to 5 are concerned, it has been

pointed out that they submitted certain wrong information in their

affidavits. The petitioner therefore, while relying upon the Hon'ble

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Apex Court judgment in the case of Kisan Shankar Kathore Vs.

Arun Dattatray Sawant and Others; AIR 2014 SC 2069

submitted that the nomination forms of respondents No.1 and 3 to

5 had been wrongly accepted by the Returning Officer and on

account of the said improper acceptance of the nomination forms,

the election of the returned candidate had been materially

affected.

12. Heard the petitioner and learned counsels for the parties.

13. Before adjudicating the issue whether the present election

petition discloses any cause of action for declaration of the

election result to be void and whether there is any discrepancy in

the affidavits as filed by respondents No.1 & 2 so as to constitute

any incorrect or false affidavit, a perusal of the pleadings as made

in the plaint/petition would be relevant.

14. Para No.7 of the petition refers to respondent No.1, the

returned candidate, wherein it has been pleaded as under :

"7. That BJP candidate Vishwaraj Singh Mewar has filled in Part No.3 of the nomination paper as 54 years of age, whereas his age has been stated as 56 years in the voter list along with his nomination papers. Also, in serial number 4 of the affidavit submitted by him PAN card number, and Sr. No.1 his personal name and the permanent account number of Hindu Undivided Family is AAEHU8629Z at serial number, in serial number 2, the PAN card number of his wife Mahima Kumari Singh, in serial number 3, the permanent account number of Hindu Undivided Family is number AAEHU8629Z are shown. Whereas in the affidavit of his wife respondent No.2, the said column has been marked as NIL. Whereas respondent No.1 and 2 are husband and wife.

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Both of them purchased the stamp on the same day on 03/11/2023 and got it notarized at the same place, on the same day, and the affidavits of both are different, that is, they are false, the facts have been concealed. The respondent No.1 in his affidavit has stated the gross value of his property as Rs.50,72,499/- and that of his W/o as Rs.22,99,000/- and in the column of Hindu divided family, he has stated the value of articles and jewelery as Rs.24,98,500/- have shown. Whereas in the affidavit submitted by his wife, she has shown her husband Rs.75,70,999/- of her husband and NIL amount in the column of undivided Hindu family, that is, she has hidden the facts by filing a false affidavit. Besides this, many facts have been concealed by them."

15. A bare perusal of the above pleadings reflects that the only

alleged discrepancy pointed out in para 7 of the petition is that

there is a variation in the income and the value of articles and

jewellery as furnished in the affidavits of respondents No.1 & 2.

The particulars as furnished by respondent No.1 in his affidavit

(Annexure-2) is as under :

8 vkfLr;ksa vkSj nkf;Roksa ¼virV vkfLr;ksa lfgr½ ds :i;ksa ds C;ksjs&

fooj.k Lo;a ifr ;k fganw vkfJr&1 vkfJr&2 vkfJr iRuh vfoHkDr &3 dqVqac d- taxe 75]70]999@ 22]99]000@ "kwU; 1]20]000@ 56]000@ Ykkxw vkfLr;ka ugha

The gross value of the assets and liabilities qua himself

(respondent No.1) has been reflected to be Rs.75,70,999/-, of his

wife to be Rs.22,99,000/-, of his Hindu undivided family to be

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'NIL', of dependent No.1 (daughter) to be Rs.1,20,000/- and of

dependent No.2 (son) to be Rs.56,000/-.

16. The particulars as furnished by respondent No.2 in her

affidavit (Annexure-3) is as under: -

8 vkfLr;ksa vkSj nkf;Roksa ¼virV vkfLr;ksa lfgr½ ds :i;ksa ds C;ksjs&

fooj.k Lo;a ifr ;k fganw vkfJr&1 vkfJr&2 vkfJr iRuh vfoHkDr &3 dqVqac d- taxe 22]99]000@ 75]70]999@ "kwU; 1]20]000@ 56]000@ Ykkxw vkfLr;ka ugha

As per her affidavit, valuation of the assets and liabilities qua

herself has been reflected to be Rs.22,99,000/-, her husband to

be Rs.75,70,999/-, qua Hindu undivided family to be NIL,

dependent No.1 to be Rs.1,20,000/- and dependent No.2 to be

Rs.56,000/-.

17. A bare comparison of the above particulars, on the face of it,

makes it clear that there is no discrepancy whatsoever in both of

them.

Respondent No.1, i.e., the husband, has reflected the

valuation of his assets and liabilities to be Rs.75,70,999/- and

respondent No.2, i.e., the wife, has also reflected the said

valuation qua her husband to be Rs.75,70,999/-. Respondent No.1

has reflected valuation of assets and liabilities qua his wife to be

Rs.22,99,000/- and respondent No.2 has also reflected the

valuation of her assets and liabilities to be Rs.22,99,000/-.

18. So far as mentioning of the bank account number of Hindu

undivided family by respondent No.1 and non-mentioning of the

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same by respondent No.2 is concerned, that also cannot be

termed to be any discrepancy as the said column specifically

provides for mentioning of the same only in the case of Karta or a

coparcener. Evidently, respondent No.2, the wife, can neither be

termed to be the Karta nor a coparcener of the joint Hindu family

of respondent No.1 i.e. her husband.

Besides the above alleged discrepancies, no other ground of

any concealment or any incorrect statement has been raised by

the petitioner. Only a vague averment that certain other facts

have been hidden, has been made which, in absence of clear

particulars, cannot be considered or adjudicated.

19. In view of the above crystal clear facts and in view of the

fact that no discrepancy, whatsoever, could be pointed out by the

petitioner in the affidavits as filed by respondents No.1 & 2, this

Court is of the clear opinion that there was no ground available

with the Returning Officer to reject the nomination paper as filed

by respondent No.1, the returned candidate.

20. Further, the order dated 05.12.2023 as passed by the

Returning Officer while deciding the objections as raised by the

petitioner, makes it clear that no objection, whatsoever, was raised

by the petitioner before scrutiny of the nomination papers been

made by the Returning Officer. As is reflected from the order dated

05.12.2023, the date fixed for scrutiny of the nomination form

was 07.11.2023 whereas the objections were raised by the

petitioner on 25.11.2023.

However, even on merit, the Returning Officer, while

considering the requirements as per the provisions of Act of 1951

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to the effect that no column of the affidavit as filed by the

candidate should be kept blank and further, the same ought to

have been signed, notarised and to be on a stamp paper of

Rs.50/-, held that all the said conditions had been complied with

in the affidavits of the candidates. The Returning Officer hence,

held the nomination paper to be valid and not to be disqualified in

terms of any of the provision of the Act of 1951 or any of the

guidelines as issued by the Election Commission.

21. In view of the above facts and observations, this Court is

also of the clear opinion that there being no breach of any of the

provisions of the Act of 1951 or the guidelines as laid down by the

Hon'ble Apex Court in Public Interest Foundation's case

(supra), the nomination form of respondent No.1 could not have

been rejected by the Returning Officer.

22. So far as the present petition is concerned, this Court is of

the clear opinion that no fact, whatsoever, has been

reflected/pleaded which can be termed to be a breach of any of

provisions of the Act of 1951 or the guidelines issued by the

Hon'ble Apex Court in Public Interest Foundation's case

(supra) so as to constitute a cause of action to lay the present

election position.

23. As is the settled position of law, a frivolous litigation ought to

be nipped at the bud, and if the Court reaches to a conclusion that

no relief, as prayed for, can be granted, the plaint ought to be

rejected at the threshold in terms of Order VII Rule 11, CPC. The

Hon'ble Apex Court in the case of Madanuri Sri Rama Chandra

Murthy vs. Syed Jalal ; (2017) 13 SCC 174 held as under:

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"8. The plaint can be rejected Under Order VII Rule 11 if conditions enumerated in the said provision are fulfilled.

It is needless to observe that the power Under Order VII Rule 11, Code of Civil Procedure can be exercised by the Court at any stage of the suit. The relevant facts which need to be looked into for deciding the application are the averments of the plaint only. If on an entire and meaningful reading of the plaint, it is found that the suit is manifestly vexatious and meritless in the sense of not disclosing any right to sue, the court should exercise power Under Order VII Rule 11, Code of Civil Procedure. Since the power conferred on the Court to terminate civil action at the threshold is drastic, the conditions enumerated Under Order VII Rule 11 of Code of Civil Procedure to the exercise of power of rejection of plaint have to be strictly adhered to. The averments of the plaint have to be read as a whole to find out whether the averments disclose a cause of action or whether the suit is barred by any law. It is needless to observe that the question as to whether the suit is barred by any law, would always depend upon the facts and circumstances of each case. The averments in the written statement as well as the contentions of the Defendant are wholly immaterial while considering the prayer of the Defendant for rejection of the plaint. Even when, the allegations made in the plaint are taken to be correct as a whole on their face value, if they show that the suit is barred by any law, or do not disclose cause of action, the application for rejection of plaint can be entertained and the power Under Order VII Rule 11 of Code of Civil Procedure can be exercised. If clever drafting of the plaint has created the illusion of a cause of action, the court will nip it in the bud at the earliest so that bogus litigation will end at the earlier stage."

[2024:RJ-JD:38133] (12 of 14) [EP-2/2024]

24. Further, this Court is of the clear opinion that the present

election petition cannot be entertained even on the count that

both the reliefs as prayed for by the petitioner cannot be granted

to him. As is the settled position of law, in a case where none of

the reliefs as sought in the plaint can be granted to the plaintiff in

terms of law, such suit should not be allowed to continue and to

go for a trial. Such a suit should be thrown out at the threshold.

The said view gets it support from the ratio as laid down by the

Hon'ble Apex Court in the case of Rajendra Bajoria and Ors.

Vs. Hemant Kumar Jalan and Ors.; (2022) 12 SCC 641

wherein the Hon'ble Apex Court affirmed the findings as recorded

by the Division Bench of the High Court which read as under:-

"(32) What should the Court do if it finds that even taking the averments in the plaint at face value, not one of the reliefs claimed in the plaint can be granted? Should the Court send the parties to trial? We think not. It will be an exercise in futility. It will be a waste of time, money and energy for both the Plaintiffs and the Defendants as well as unnecessary consumption of Court's time. It will not be fair to compel the Defendants to go through the ordinarily long drawn process of trial of a suit at huge expense, not to speak of the anxiety and un-peace of mind caused by a litigation hanging over one's head like the Damocles's sword. No purpose will be served by allowing the suit to proceed to trial since the prayers as framed cannot be allowed on the basis of the pleadings in the plaint.

The Plaintiffs have not prayed for leave to amend the plaint. When the court is of the view just by reading the plaint alone and assuming the averments made in the plaint to be correct that none of the reliefs claimed can be granted in law since the Plaintiffs are not entitled to claim such reliefs, the Court should reject the plaint as disclosing no cause of action. The reliefs claimed in a plaint flow from and are the culmination of the cause of action pleaded in the plaint. The cause of action pleaded and the prayers made in a plaint are inextricably intertwined. In the present case, the cause of action pleaded and the reliefs claimed are not recognized by the

[2024:RJ-JD:38133] (13 of 14) [EP-2/2024]

law of the land. Such a suit should not be kept alive to go to trial....."

25. In Azhar Hussain vs. Rajiv Gandhi; 1986 Supp 315, the

Hon'ble Apex Court held that the whole purpose of conferment of

powers under the provision of Order 7 Rule 11, CPC is to ensure

that a litigation which is meaningless, and bound to prove

abortive, should not be permitted to waste judicial time of the

Court, in the following words:

"12.... The whole purpose of conferment of such powers is to ensure that a litigation which is meaningless, and bound to prove abortive should not be permitted to occupy the time of the court, and exercise the mind of the Respondent. The sword of Damocles need not be kept hanging over his head unnecessarily without point or purpose. Even in an ordinary civil litigation, the court readily exercises the power to reject a plaint, if it does not disclose any cause of action."

26. Testing on the touchstone of the above ratio as laid down by

the Hon'ble Apex Court, so far as the first relief is concerned, an

elaborate analysis has already been made in the preceding paras

and hence, the same needs no repetition.

So far as prayer No.2 is concerned, the same also cannot be

granted to the petitioner as neither is he the candidate who

received a majority of valid votes nor has he pleaded that any

vote had been obtained by the returned candidate by corrupt

practice and, but for the said vote/votes, the petitioner would

have obtained a majority of valid votes. The petitioner therefore,

can even otherwise be not declared to be elected in terms of

Section 101 of the Act of 1951.